It has been ruled that care workers who are required to sleep in a client’s home are entitled to be paid the national minimum wage for all hours worked – including hours spent asleep.
The decision, made by the employment appeal tribunal will have significant consequences for the social care industry, as the costs of providing staff to clients will increase massively and there may be claims for backdating pay. Care agencies that refuse to pay up as part of the new ruling could see penalties and fines assigned to them over the next 12 months for failure to provide the NMW.
In the case that brought this issue to light, the care worker was employed by the charity Mencap to sleep at a client’s home in order to be readily available for them if required. She was paid a flat rate of £29.05 for the nine hours she was on shift during the night and received £6.70 an hour during daylight working hours. It is stated as part of the NMW regulations that all workers must receive national minimum wage as an average for ALL hours worked. The employment tribunal ruled that the care worker was indeed entitled to be paid an amount equivalent to national minimum wage for the whole period that she was at work – including the periods in which she was asleep.
From a legal perspective, regulations surrounding NMW and care staff are far from clear; the judge in this specific case commented that there is no deciding factor in these cases, and employers will need to look at several issues regarding national minimum wage for their staff to determine if their pay structure may be considered unlawful.
If you are an employer at a care agency and are looking for advice on where you stand regarding NMW and your staff members, it is advised to seek expert legal advice in the first instance.
For more information please contact Alex Pearce in our Employment Law Team on firstname.lastname@example.org or call 01708 229444 for advice if you have any queries on care worker pay and the national minimum wage.
This article was written by Alex Pearce, our Employment Law Associate at Pinney Talfourd Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. The law may have changed since this article was published. This article is based on the law as of May 2017.