The ongoing National Minimum Wage (NMW) dispute with care workers regarding sleep-in shifts has brought to light several issues regarding the payment of staff within the social care industry.
In particular, the dispute has raised questions about what constitutes as “working time”. Simply understood, “working time” is any period in which staff are working. This includes time spent travelling between work sites or clients, cleaning at the end of shifts and periods when an employee is working whilst on-call. In these instances, staff must be paid the NMW. It does not include time taken to travel to work from home, lunch breaks or being on-call without being asked to work.
In particular, the dispute has raised questions about what constitutes as “working time”. Simply understood, “working time” is any period in which staff are working. This includes time spent travelling between work sites or clients, cleaning at the end of shifts and periods when an employee is working whilst on-call. In these instances, staff must be paid the NMW. It does not include time taken to travel to work from home, lunch breaks or being on-call without being asked to work.
Common practice within the care industry is to pay what they believe to be on-call workers a flat rate and only NMW when they are awake and working. However, their definition of an on-call worker has been questioned. Care home employees have claimed; occasions in which they were asked to sleep on the premises overnight do not class as being on-call and as such, they should be paid NMW for the entire time they were on the premises. The government is clear that all employers must pay workers for sleep-in shifts according to their statutory requirements.
Specific differences between on-call and sleep-in workers have not, as of yet, been firmly established. Past cases have attempted to distinguish between the two circumstances by determining the consequences of an employee leaving the premises. If an employee would be disciplined if they left their working premises, then the general trend suggests it is more probable they are a sleep-in worker and are more likely to be entitled to the NMW for the whole period. If an employee is allowed to leave the premises, even if they are required to sleep there as a security measure, then it is likely they would be categorised as being on-call and such are not entitled to NMW.
There is a lack of legal clarity regarding this matter. Courts and Tribunals have struggled to clearly differentiate between these two circumstances, ensuing resultant judgements have been highly case specific.
Recently, the government have suspended HMRC enforcement activity regarding the underpayment of care-workers until 2nd October 2017 in order to minimise disruption within the social care industry. They have also waivered historical financial penalties owed by employers who have underpaid their workers for sleep-ins before 26th July 2017. This is a welcome relief for employers in the social care sector and the government decision may have reflected this. They recognise that the potential penalties and arrears of wages could pose significant challenges to the sector and in some circumstances, providers may be unable to meet their obligations to repay their workers.