Social care sector may need to rethink pay rates following tribunal win

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An Employment Appeal Tribunal’s (EAT) decision regarding staff who are required to ‘sleep in’ as part of their duties, could have wage cost implications for the social care sector.

In a case brought against the charity, Mencap, an appeal tribunal heard that a care worker was contracted to sleep at a client’s home, to be on call if an incident occurred. She was paid a flat rate of £29.05 for the nine hour night shift but during the day she picked up £6.70 an hour.

The EAT ruled that as the care worker was expected to constantly use her professional judgement to decide whether or not she needed to intervene, she was entitled to be paid the national minimum wage (NMW) for the whole period she was on shift, including when she was asleep.

However, the ruling will not necessarily mean a complete overhaul of sleep-in pay rates across the care sector.

A separate case heard alongside the Mencap appeal involved another care worker who, in order to satisfy Care Quality Commission regulations to have enough suitably qualified staff present, was expected to sleep in. The employer paid the waking worker for all hours worked during the night while the sleeping worker was paid a £25 nightly flat rate allowance, with no hourly rate for the time spent asleep.

In this case, the Judge stated that just because the sleeping worker was required to be at the premises all night did not mean they were entitled to the NMW when they were asleep.

Lara Murray, an Associate with Palmers who specialises in employment law, said: “These two cases illustrate the fact that payment for ‘down time’ such as sleep-ins is not a clear-cut matter and could lead to a great deal of confusion for employers, who may unwittingly find that they have broken the law.

“HMRC enforces the NMW and some HMRC inspectors will interpret the NMW rules in a different way. There have been reported instances of some inspectors reassuring providers that they are compliant, only for a later inspection to reverse this decision.

“Failure to pay the NMW carries criminal penalties and fines, with the prospect of any back pay arrears being doubled, so any employer who is concerned that they may caught out by the new regulations, should seek expert legal advice.”

For advice on all employment law matter including the national minimum wage regulations, please contact us.