16/11/2015
LIVE IN CARERS - WHAT ARE YOUR LEGAL RIGHTS FOR BREAKS?
Most live-in carers are very uncertain about what their legal rights are when it comes to break times.
We felt it was about time that it is made clear to you exactly what your entitlements are.
Government legislation stipulates that anyone who is defined as a ‘worker’ is entitled to the National Living Wage (NLW). This is regardless of whether a written contract has been signed or not.
After April 6th 2015 new National Living Wage regulations came into effect. This article is up to date in accordance with the changes.
The NLW must be paid for all of the following circumstances:
* Travelling during normal working hours – you should be paid for all travel time relative to your job (not from your home to work) including travelling time from one position or client, waiting for public transport such as buses, waiting to collect goods such as a clients shopping. You should also be paid if you start a job and travel from work to training, except if you are on a rest break.
* When you are required to be working: this means you should be paid even if your client is in hospital or some other unforeseen circumstance prevents you from doing your job.
* You should be paid for training, or travelling to training.
* You must also be paid if you are on standby or on call at work.
For Live-in carers, sleeping time is a large part of the day. Whether or not you are paid can be complicated.
According to Crunch, If you are employed on ‘time work’ (you are paid an hourly rate in relation to the time you work and your hours may vary) – Government guidance says that you should receive the NMW for all the time when you are at work working (excluding rest breaks); or at work and available for work; or required to be available for work on standby or on-call at or near your place of work and working; or awake for the purpose of working during ‘sleeping time’ (by arrangement with your Employer, you sleep at or near your place of work and you are provided with suitable facilities for you to do so).
Government regulations stipulate that for all types of work, do not include:
* travelling between home and work
* away from work on rest breaks, holidays, sick leave or maternity leave on industrial action
* not working but at the workplace or available for work at or near the workplace during a time when workers are allowed to sleep (and you are provided a place to sleep)
For so called ‘zero hour contracts’ home workers are expressly covered by the NMW Regulations.
* In relation to live in care workers, where the sleep-over is part of the core duties, all hours on the premises count as working time (examples – a care worker who has worked 2 shifts of equal length – one in the day and one in the night when they could sleep; a Care Home Manager with a rent-free apartment on site is required to provide 24 hours a day on site cover)
The National Minimum wage does not need to be paid for time when you are:
*Being paid less than your normal pay, e.g. if you get half pay while on sick leave.
* On any unpaid leave your Employer allows you to take.
* On-call at home or at another location, but not at work and not working.
* Travelling between work/appointments and home.
It is important that live-in carers are aware that despite being entitled to a NLW, the accommodation that is provided as part of their living conditions means that accommodation provided by an employer can be taken into account when calculating the minimum wage. According to the government website, gov.uk:
The offset rate for accommodation charges is £5.35 a day or £37.45 a week. If an employer charges more than this, the difference is taken off the worker’s pay which counts for the minimum wage.
This means the higher the accommodation charge, the lower a worker’s pay when calculating minimum wage.
If the accommodation charge is at or below the offset rate, it doesn’t have an effect on the worker’s pay.
If the accommodation is free, the offset rate is added to the worker’s pay.’
Rent and utility bills can also be factored into the overall expense calculation.
It is therefore imperative that you negotiate a deal whereby you are satisfied that you are gaining an acceptable hourly rate after accommodation and bills have been taken into account. It is the employer’s prerogative to charge higher rent to keep wages down and therefore in your interest to negotiate firmly but fairly.
According to the government website, workers aged 18 and over are entitled to 3 different types of breaks; rest break at work, daily rest and weekly rest.
If workers work more than 6 hours a day then they are entitled to a break of 20 minutes. This must be uninterrupted and can be used however the worker pleases.
For daily rest, workers have the right to have 11 hours of rest between shifts, so if they go home at 9pm then they are entitled to refuse work before 8am the following day.
For weekly rest, Workers have the right to either an uninterrupted 24 hours without any work each week or an uninterrupted 48 hours without any work each fortnight.
However, there are exceptions to the rules. Some workers are not entitled to the 3 types of rest breaks, and in particular, for carers, if they are self-employed or on a zero hour contract- a job where they freely choose what hours they work (like a managing director) or where the work is not measured (i.e. no set hours) then they are not entitled to receive the 3 types of paid breaks.
Written By:
Daniel James
www.danieljamesbio.com
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