At Workline we get a lot of queries from Care Workers who are unsure of their rights, and with Healthcare Providers in the news lately as they run out of money, we felt it was time to summarise your rights!  Updated for 2013.

See our Guide to Zero Hours Contracts here.

The profile of the UK’s Social Care Workforce (data 2009/2011) is:

  • 70% of social care staff work in the private or voluntary sector (not for local councils or the NHS).
  • Care is provided by 35,000 different Employers – in people’s own homes, care homes, day care, hospitals, etc.
  • There are more than 1.75 million care workers in the UK and 83% of them are female.
  • Only one in four unqualified care workers is a member of a trade union and the workforce is badly paid with 9% of staff earning less than the minimum wage.

The queries we get at Workline are mostly concerns about Pay, Working hours, Rest breaks and Holidays and are usually from individuals who:

  • Provide care during the day at a clients house/care home and/or
  • Provide care overnight by sleeping at the clients house or care home and who may be called on at any time during the night.
  • Are ‘on-call’ at their own home and who may be summoned to work at any time.
  • ‘Live in’ at the clients house for a period of time, providing a variety of services, some of which are during ‘on-call’ periods.

In these circumstances it is often difficult to establish what hours they should be paid for and what rest breaks they should have.

See our new article about Portable Criminal Records Checks – effective from 17th June 2013.

 

We were supported by the Employment team at Goodman Derrick LLP in the writing of this article. Goodman Derrick LLP provides a wide range of expert employment advice to both employers and employees.  This includes those in the Social Care Sector, such as live-in carers, nannies, housekeepers and their employers. Goodman Derrick LLP have developed a number of resources including precedent contracts to assist both employers and employees working in this sector and Lucy Bloom specialises in this field.

Alison Downie, Head of Employment at Goodman Derrick LLP said, “We recognise that the law is very complex for both employers and employees working in the Social Care Sector.  We understand that employers want to ensure that they are complying with their employment law obligations, whilst employees want to know that their employment rights are being protected.  We are able to provide both employers and employees with expert, practical, cost effective advice, in order to ensure that they can deal with the hurdles of employing individuals or working in the Social Care Sector.”

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative interpretation of the law. It can also not be seen as specific advice for individual cases. We would advise you, if you are unsure of your rights, to join an appropriate Union or consult a legal advisory service/solicitor.

So, in detail, the information you need to know about:

Pay – The Minimum Wage

Anyone who is defined as a ‘Worker (including Employees and Agency Workers) is entitled to the minimum wage (NMW), regardless of whether they have a written contract or not.  For more details about Zero-Hours contracts see our new Guide here.

There are different minimum wage rates for different age groups of workers – see our main NMW Guide for details.

The National Minimum wage must be paid for all the time when you are:

  • At work when required to be working (even if work is not possible)
  • Travelling on business during normal working hours – you should be paid for all travel time in connection with your job (not from your home to work) including travelling time from one assignment/client, except if you are on a rest break.  This includes time waiting to meet someone in connection with your work.  If you need information on mileage allowances then please look at the HMRC website here.  If you are paid less than the tax-free mileage amount, you are entitled to Mileage Allowance Relief. This means that if your employer pays you less than the maximum rate per mile for work journeys, you will be entitled to additional tax relief.  You can fill in form P87 ‘Tax relief for expenses of employment’ which is on this link.
  • Training (or travelling to training) during your normal working hours
  • On rest breaks, lunch breaks, holidays, sick leave or maternity leave, where these form part of your minimum hours under your contract of employment.

It must also be paid for all the time when you are on standby or on call time at your place of work.  However, here it gets complicated regarding ‘sleeping time’:

  • 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 and 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).  At the end of December 2013, an important case Whittlestone v BJP Home Support Ltd confirmed that employees who are engaged on ‘time work’ who are required to ‘sleep over’ at a specified location as part of their work are entitled to be paid the NMW for all those hours, regardless of whether their sleep was interrupted by work or not – details are available in our new Guide here.
  • If you are employed on ‘salaried work’ (you are paid an annual salary – in equal installments – for set hours but your hours may vary) – you should receive the NMW for all the time when you are at work and when you are awake for the purpose of working during ‘sleeping time’ (definition as above).
  • If you are employed in ‘unmeasured work’, so you work when required to work and there are no specified hours, carrying out contractual duties for a flat rate, e.g. a home carer who lives and works in a clients home before having a break and receives a one-off, flat rate payment. Determining for what hours you should receive the NMW is difficult unless you are employed on a ‘daily average hours agreement’, which is an agreement in writing between a worker and an employer which determines the average daily number of  hours the worker is likely to spend on their duties – and for these hours the NMW should be paid. Workers who have entered into a ‘daily hours agreement’ do not have to be paid the minimum wage for each hour worked, but they must be paid the minimum wage, on average, for the time worked in their pay ‘reference’ period.  This ‘reference’ period is the period of time a worker’s wage is actually calculated, e.g. on a weekly or monthly basis, but cannot be longer than one calendar month.  Alternatively, where a worker has not entered into a ‘daily hours agreement’ but is employed in unmeasured work, their employer must record the hours they work during the pay reference period, and pay them for every hour worked.
  • Agency Workers and HomeWorkers are expressly covered by the NMW Regulations.

N.B. Please note that the law relating to whether the NMW needs to be paid during ‘sleeping’ time whilst on-call and not working is complex  and case law is changing constantly.  Therefore please do not rely on our advice for your individual circumstances; it is guidance only and cannot be taken as an authoritative interpretation of the law.  In 2012 an important case at the Employment Appeals Tribunal confirmed what previous case law had described – that during a sleeping night-shift, only the hours spent awake and working will count towards a workers National Minimum Wage – details are here.  However, at the end of 2013, an important case Whittlestone v BJP Home Support Ltd confirmed that employees who are engaged on ‘time work’ who are required to ‘sleep over’ at a specified location as part of their work are entitled to be paid the NMW for all those hours, regardless of whether their sleep was interrupted by work or not – details will be available in our new Guide here shortly.

There is also the following exception to a worker being entitled to the NMW. A worker who lives in their Employer’s home and shares in the household chores and leisure activities may not be entitled to the NMW if they are living with and being treated as part of the family. It is debatable whether Carers would fall into this category.

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.

For information if your Employer declares short-time working, please click here.

The pay that should be taken into account when calculating your average hourly rate of pay is:

  • your total gross pay (basic salary, any bonus or commission or incentive payments).
  • certain ‘benefits in kind’ can be taken into account, this includes where your Employer provides you with accommodation.  The NMW may be ‘offset’ by some of your accommodations value.  From 1st October 2014 this is  £4.91 per day.  For more details about how this works please see the Direct Gov page here.
  • Salary sacrifice schemes (e.g. childcare vouchers) are excluded from the calculation.
  • Repayment of expenses are not included.
  • Expenses for travel to a temporary workplace are not included.

However, any premiums that are paid for overtime or shift work or on-call/sleep-in shifts does generally NOT count towards calculating your salary for the NMW and meals, fuel or car allowances/lease car costs do not count towards the NMW calculation.

The Government run a Pay and Work Rights Helpline which can advise you about the NMW – on 0800 917 2368 – they also deal with complaints from workers who are being paid below the threshold.

Your Employer must keep records that show they have paid the NMW for 3 years, and you have the right to inspect these records if you have reasonable grounds to believe you have not been paid the NMW; you may complain to an Employment Tribunal if you are not allowed to see these records.

Workers also have a right not to be subjected to any detriment caused by an act of their Employer because the worker had taken action to enforce their statutory right to be paid the NMW.

The National Minimum Wage Regulations are enforced by the HMRC who have compliance and enforcement officers and can prosecute Employers for not abiding by the NMW.

 

Rest Periods and Rest Breaks

The Working Time Regulations entitle all (with a few exceptions – see below) Workers and Employees to:

  • A minimum Daily Rest Period of 11 hours uninterrupted rest between finishing your job and starting the next day.
  • A Weekly Rest Period of 24 hours uninterrupted rest within each seven day period; or at the Employer’s choice a Fortnightly Rest Period of 48 consecutive hours within each 14 day period.
  • The weekly rest period should not include any part of the daily rest period.
  • A break of 20 minutes if your daily working day is more than 6 hours long.
  • If you are an Agency Temp then the Employer you are working for (not the Agency who employs you) is responsible for you receiving these minimum rest breaks.
  • The first 2 type of rest periods are generally unpaid.  The 20 minute break may be paid or unpaid, depending on what it says in your contract of employment.  For more information on rest breaks please see the Direct Gov website here.

(See our Guide to Zero Hours Contracts here).

* Certain ‘special case’ workers are exempt from these rest break provisions and can be legitimately asked to work through their rest-breaks if

  • You are a shift worker who may not be able to take your daily or weekly rest periods between shifts. Shift Workers are defined as those engaged in activities involving periods of work that are split up over the day and those who work according to a certain shift pattern where workers ‘succeed’ each other at the same workstations. The shift pattern may be continuous or discontinuous but will involve the need for workers to work at different times over a given period of days or weeks.
  • There is a genuine need for continuity of production/ service around the clock, eg. hospitals, residential institutions, care workers. This exemption is likely to apply to some care workers.
  • Where the work takes place in different places distant from each other, where it is difficult to set a work pattern.  Care Workers who are required to travel to different appointments during their working day may fall into this exemption.
  • The work is affected by unusual or unforeseeable circumstances beyond anyone’s control, or where work is affected by an accident or risk of an accident.
  • There is a Collective or Workforce Agreement in place that excludes these obligations – but the worker must have been fully consulted with to ensure these are valid.  There are detailed rules relating to these agreements and advice should be sought before entering into such an agreement.

In these circumstances, if you cannot receive your rest breaks you must be offered an equivalent period of ‘compensatory rest’ wherever possible.  This compensatory rest should be given immediately after the end of the work period where possible.  If this is not possible for objective reasons, the Employer should give you “such protection as may be appropriate in order to safeguard the workers health and safety”.  An important case in 2012 confirmed that interrupted rest breaks can still count as compensatory rest – details are here.

The Government Department for Business, Innovation and Skills (previously BERR) has published guidance that says a worker, even if they fall into one of these categories, must have a right to a minimum of 90 hours rest per week.  Compensatory rest does not necessarily need to come out of time that would otherwise have been working time. It is likely that Carers will be covered by compensatory rest provisions in many cases.

Domestic servants employed in a private household are excluded from a number of the Working Time Regulations, except they are entitled to daily and weekly rest breaks.  It is debatable whether carers could be classified as “domestic servants,” as the definition of “domestic servant” has not be tested in the Courts. (2011)

In addition, there is also the principle of Unmeasured Working Time. This applies to a worker whose working time is not measured or pre-determined and where the worker has control over the number of hours they work. These exempted workers are excluded from a number of the WTR, including all rest break provisions and the 48 hour maximum weekly working hours (see next section). Unmeasured working time generally applies to Company Directors (and specifically those with autonomous decision making powers), Managers, Family Workers and Religious Workers.

It is debatable whether this can be applied to most care workers, particularly if they do not have the autonomy to control the number of hours they work and if they have a fixed number of normal hours or on-call hours.

 

Working Hours

The legislation states that you cannot work for more than 48 hours per week, which is normally measured over a 17 week ‘reference period’.

However, this ’17 week reference period’ can be amended where:

  • There is a valid collective or workforce agreement in place the reference period can be extended up to a maximum of 52 weeks, provided that objective or technical reasons or reasons concerning the employer’s organisation justify this extension.
  • Workers can have a 26 week reference period if they do work that involves the need for continuity of service or production e.g. hospital and care workers. This is likely to be applicable to many care workers.

(For full details see our WTR Guide here).

Information you need to know about the weekly working limit:

  • If you are on a PAYE contract for a fixed period (employee or worker), that is under the 17 or 26 week reference period (whichever your employer is using), your ‘reference’ period for calculating your working hours will be the actual length of your contract.
  • This 48 hour per week limit also applies if you have more than one job, i.e. the total amount of combined working hours you do should not exceed 48 per week.  If it does, each Employer should ask you to sign an Opt-Out (see below).
  • If you are an Agency Temp then the Employer you are working for (not the Agency that employs you) is responsible for ensuring you do not work more than 48 hours per week.
  • The ‘reference’ period takes into account any statutory holiday, sick leave, maternity/paternity/adoption/parental leave and any Opt-Out’s (see below) in place.  The reference period is extended by the number of days on any of the above.
  • Domestic servants who work in a private household are generally excluded from the weekly working time limit.  As mentioned above, it is debatable whether care workers fall under this exemption.
  • Those who have unmeasured working time (see previous section) are exempt from the weekly working hours limits. Again, it is debateable whether care workers fall under this exemption.

Opt Outs:

  • In many industries Workers can be asked by their employers to voluntarily sign an Opt-Out Agreement which is legal, i.e. you opt out of the 48 hour limit and agree that you can work for more than 48 hours per week. The Opt-Out is not a condition of your employment and it must remain optional and voluntary. Therefore even if you have signed your contract with an Opt Out in place you have the legal right to opt back in to the 48 hour limit at a later date – you have to give your employer a minimum of 7 days written notice by law to do this (check your contract in case it requires a longer time scale to Opt back in, as this is allowed).
  • You should not be subjected to any detriment by refusing or proposing to refuse to sign an Opt-Out agreement. If you are an employee and are dismissed because you refuse to sign an Opt-Out clause then this could be an automatically unfair dismissal and you could potentially make a claim to an Employment Tribunal.
  • The number of hours you work per week can be averaged by your employer over the applicable reference period (or your contract length), rather than measured in one week, and the first 20 days holiday you are legally entitled to (see below) cannot be used to reduce your average number of hours worked. However Daily and Weekly Rest breaks and the Opt Out, the maximum in any week you should work is 78 hours – unless you choose to forego your rest breaks (see our main Guide to the WTR for more details).

To calculate your working hours you include your:

  • ‘Normal’ weekly working hours (any period during which you are working or at the Employers disposal and carrying out their activities or duties)
  • Job-related training
  • Job-related travelling time (including where this an integral part of the job)
  • Business/working lunches
  • Time spent working abroad (for a UK company)
  • Paid and some unpaid overtime (see below)
  • Time spent on-call at the workplace (either working or during ‘sleep’ time – whether you are asleep or actually working where ‘sleeping’ is permitted). However, please note the NMW Regulations are not clear on this issue.  There has been much case law on the WTR and whether on call time is considered to be working time. The current position is that on call time constitutes working time if the worker is required to be in the workplace, rather than at home and even if the worker is asleep for the entire period time.
  • Time spent on-call elsewhere while actually working.

The Working Week does not include:

  • Breaks when no work is done (e.g. lunch breaks)
  • Normal travel to and from work
  • Time spent travelling outside of normal working hours (i.e early meeting at a client’s premises  that requires travel the night before)
  • Time on-call spent away from the workplace (unless you are actually working)
  • Unpaid overtime where you have volunteered to, for example, stay late to finish something off
  • Paid or unpaid holiday.

Night Working

There is extra protection under WTR for people classified as night workers.

  • Night time is generally defined as the period between 11pm and 6am.
  • You are a night worker if you regularly work at least 3 hours during the night time.
  • As a night worker you should not work more than an average of 8 hours in each 24 hour period, excluding overtime (which is calculated over the appropriate reference period which is usually 17 weeks for Night Workers).
  • If your job involves special hazards or heavy physical or mental strain you cannot work more than 8 hours in each 24 hour period (i.e. no overtime can be worked) and your working hours cannot be averaged over any reference period.
  • It may be possible for a worker and an employer to enter into a workforce agreement.  Such an agreement could modify or exclude the limits on night work.  For example, it could amend the meaning of “night time.” These agreements are potentially very helpful to employers who are engaging live-in carers. However, a workforce agreement will not always be appropriate or even possible in every situation and there are a number of hurdles; specialist advice should be obtained on them.

Those who have unmeasured working time (see above) are exempt from the maximum length of night work under these provisions, as are Domestic Servants in Private Households.

If you are a Night Worker your Employer must offer you a free health assessment before you start working nights and at regular intervals after that.

Holidays

All ‘Workers’ are entitled to a legal minimum of 28 days (5.6 weeks – pro rata’d if you are part time) paid leave each year.  See our Guide to Zero-Hours Contracts here.

To see our complete article about ‘Holidays’ go to our Working Time Regulations Guide here; however the important things you need to know are:

  • Your Employer has no legal obligation to ensure you have taken your statutory holiday entitlement.
  • You start building up your holiday entitlement as soon as you start work.
  • Holiday entitlement cannot be counted as weekly rest days, it is completely separate.
  • If you are an Agency Temp then the Agency that employs you (not the Employer you are working for) is responsible for ensuring you receive your statutory minimum holiday entitlement.
  • Bank and Public holidays can be included in these 28 days; at the moment there is no statutory right to take bank holidays off. (For more information see our Bank Holidays Guide).
  • The simplest way to calculate your holiday entitlement is to multiply the number of days you work each week by 5.6.  If you work part-time, irregular or freelance hours you can calculate your entitlement on this Direct Gov page.  The holiday entitlement of 5.6 weeks is equivalent to 12.07 % of the hours worked over a year.
  • For our updated advice about holiday entitlement during sick leave, or sickness during holidays see here.

Calculating leave for shift workers – it’s often easier to work this out by the number of shifts you get off – e.g. if you work 4 x 12 hour shifts on and then have 4 days off, the average working week is 3.5 x 12 hour shifts.  So, 5.6 weeks holiday is 5.6 x 3.5 = 19.6 x 12 hour shifts holiday entitlement.

Please note that the statutory paid holiday entitlement is capped at 28 days.  So, if you work 6 days a week, you are not entitled to more than 28 days holiday under statutory entitlement (your Employer may give you more) – e.g. 5.6 x 5 days per week = 28 days but 5.6 x 6 days per week = 33.6 days.

How much pay should you receive for a week’s holiday:

A Week’s Pay is calculated in accordance with the definition of a working week in the Employment Rights Act 1996 which says that a ‘working week’ includes overtime only if this is contractual, i.e. it is specified in your employment contract. If your overtime is not specified in the contract it is not counted. To see all the details about a Week’s Pay please see our Guide hereHowever, in 2013, there are signs that the counting of non-contractual overtime may change – see more details in our new Guide ‘How to Avoid Confusion When Calculating Holiday Pay

Holiday entitlement during sick leave and sick leave during holidays!

Finally in 2012 we are getting closer to some clarity on what happens in these situations – see our August 2012 Guide to holiday entitlement and sick leave here for full details.

 

Care Standards -

At Workline we cannot help you with Care Standards issues, i.e. the training and supervision you should receive in your job, the number of staff that need to be present when providing care and so-on.

If you would like more advice/information about these sorts of issues then the Care Quality Commission may be able to help.  Their website is www.cqc.org.uk .  On this page is information about the ‘standards’ they require from the organisations they regulate and on this page you can contact them and report any concerns.

There are other Care Standards organisations too which you can find through any internet search.

If you are an Employer and need ongoing professional help with any staff/freelance issues, or a Contractor/Freelancer/Employee with a complicated employment related problem, then talk to us at The HR Kiosk  – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.

 

Photo by Aurelien Guichard - CC