26/01/2016
We recently had the following posted into our Facebook group. Please remember that if you require any questions of your own answered that you can ask Asif Yousef or Daniel James and we will get it researched and written for you if we deem it to be beneficial to the carer community.
Can someone help me with waking nights:
1) Can a client offer us a sleep in rather than pay for the times we wake up to a client.
2) Is there a law that protects us from not being paid for waking nights.
3) What are the rules around this?
When addressing this question, it is logical to see what the law says about the differences surrounding sleep ins and waking nights.
Loosely defined, a sleep-in is a night shift where you sleep at the workplace, so you are available to support people during the night. A waking night shift means you must stay there overnight and work as you would during the day, so there is usually no chance to sleep.
The following information was updated in 2015 and is taken directly from the government website:
The law regarding sleeping nights is complicated and as is often the case depends upon what is agreed in your contracts. Therefore it is usually up to the individual to determine their expectations as to whether they expect to be paid for sleep ins or for waking nights. If it is not hitherto stipulated, it could be left to your employers discretion (and often advantage).
The first thing to do is to assess what type of work you are doing. HM Revenue and Customs determines that there are four different types of work:
1. Salaried Work
2. Time Work
3. Output Work
4. Unmeasured Work
Arguably, live-in carers do what is considered to be unmeasured work. This is due to the fact that there are usually no set hours within a 24 hour period, although there are certainly times within the 24 hour window that the client ought to be available to the client without actually doing any work. This is an area which is quite vague in legal terms, but what must be made clear is that carers must not be working for an average of more than 8 hours per day. In this case, it is a very good idea to push your employer to get an ‘average working hours agreement’ whereby if you have to sleep overnight, you will not be expected to conduct daytime duties as well and will get the opportunity to sleep and rest.
When staff are paid on a Time Work basis the matter is slightly different. Live in carers are not necessarily entitled to the same level of pay as someone on Time Work as both job descriptions entail different requirements. A live-in carer is expected to be on site for a longer period of time and the overnight working is part of but not the sole reason for being on site. It is worth noting that under all circumstances the live-in carer is entitled to the National Minimum Wage, the key is how this is calculated. Clearly live-in carers do not get paid the NMW for each and every hour that they are on-site with a client, otherwise the minimum weekly pay would be over £1,200 per week and this would be unsustainable for the employers.
Should workers be paid for every hour of sleep in?
The cases of Whittlestone and Esparon concluded that where a care worker works a sleep-in shift they were entitled to the National Minimum Wage (“NMW”) for each hour of the sleep-in. These cases relate to time work (hourly paid employees) and salaried work.
However a recent case, Shannon v Rampersad and Rampersad t/a Clifton House Residential Home reached a different view. In this case the claimant was a salaried worker at a residential care home, Clifton House. Clifton House was regulated by the Care Quality Commission.
The care provider had responsibility to ensure that staffing levels were appropriate in order to meet the needs of the service users. The claimant was employed as a night worker with permanent accommodation in a flat within Clifton House.
He received a salary of £50 per week which rose to £90 per week. The claimant was contractually required to be in the flat from 10pm until 7am, but was able to sleep during these hours. He was required to be available to respond to any request for assistance from another night care worker on duty at the home.
In practice the claimant was very rarely asked to assist the night care workers. Following the termination of the claimant’s employment he made a claim in relation to the NMW for his full night on call hours dating back to when the NMW came into force.
The Tribunal found that the claimant was not entitled to the NMW for every hour that he had been required to be available. This case highlights the possibility of courts interpreting the legislation in relation to time work, and time spent asleep at a place of work where a person can be called on to perform duties, differently from the EAT in Whittlestone and Esparon.
A number of providers pay a flat rate for sleep-ins. Arguably, because this flat rate is calculated according to market rates and/or the complexity of care etc., this is an unmeasured payment method. If a person is working unmeasured time you are able to enter into a daily average agreement with them which specifies the average amount of time they will actually spend awake for the purposes of working each sleep in.
If this contains a realistic average and is found to be valid, it means that when calculating if the NMW has been received, only the hours specified in the daily average agreement will count.
Unmeasured work includes being paid a set amount to do a particular task. To work out the minimum wage for unmeasured work, you should:
* Record every hour worked and use the National Minimum Wage calculator to ensure that you get the minimum wage
* Make a ‘daily average agreement of hours’
The 2015 Guidance gives the following advice about Sleeping between Duties:
“Employers must look at whether a worker is still subject to certain work-related responsibilities whilst asleep. A worker, who is ‘working’ even though they are asleep, is entitled to the NMW for the entire time they are at work. Someone can be ‘working’ whilst asleep if, for example, there is a statutory requirement for them to be present at work and they would face disciplinary action if they left the workplace (e.g. a person working in a care home where there must be someone on the premises).
“Where a worker is only available for work and is allowed to sleep (and suitable sleeping facilities are provided at the workplace) they will not be ‘working’ and the NMW is not payable. They must be paid the NMW when they are actually awake for the purposes of working. For example, someone who lives in a flat above a pub who is required to sleep there but can come and go at night as they please – there are no specific responsibilities during the night apart from the fact the premises is occupied.”
Waking night cover means the carer must be awake all night to undertake any care needs that may arise. If care is required at regular intervals during the night then the carer can undertake those tasks but during the rest of the time the carer can undertake domestic duties such as laundry, cleaning, etc. as necessary.
Alternatively, if a patient’s care requirements mean that they need someone to be there just in case then a sleep-in service is what is ordinarily utilized. In those circumstances the carer would need a bed to sleep in and would immediately respond to any requests for assistance. The sleep-in service works well with a telecare service that monitors the patient and keeps the carer alerted as to whether their attention is required or not. In the case of some employers, If a carer is disturbed more than twice during the night, the sleep-in service automatically reverts to a waking night service.
In any case, Unison has information concerning sleep ins. According to the union:
“Recent case law has established that “sleep-ins” are covered by the National Minimum Wage (NMW) regulations. So even if a worker is allowed to sleep at work, if they are required to stay at their workplace, then all their hours are covered by NMW regulations.
This means if any worker is paid - on average – less than the National Minimum Wage over their pay reference period, they will be entitled to a pay rise. They may also be entitled to back pay but because working patterns vary enormously between individuals; this will need to be done on a case-by-case basis.”
Whilst the Guidance does not have any statutory effect it could be persuasive for Employment Tribunals deciding these issues and therefore employers who employ people to sleep as part of their job should familiarise themselves with it and make an assessment of whether the NMW should be paid.
It is worth noting that for self-employed people this is irrelevant, and it is what is written down in each contract that matters.
Written By:
Daniel James
www.danieljamesbio.com
LinkedIn
