Earlier this week, seventeen care workers, who were contracted by private healthcare provider Sevacare to provide care services to the Local Authority of Haringey, issued proceedings for their failure to pay the National Minimum Wage (“NMW”).
Unison report that these are some of the worst breaches of the NMW to have ever been seen by the tribunal and it represents one of the biggest claims seen across the sector.
All 17 care workers were involved in the delivery of “live-in” care provision and were reported to be on duty for 24 hours a day. It is alleged that their payslips show staff being paid £3.27 per hour for their live-in care work at a time when the national minimum wage was £7.20 per hour.
The tribunal proceedings also involve former Sevacare workers in Haringey who claim that they were not paid for travelling between visits to clients and that, as a result, their pay rates fell below the NMW.
Sevacare has contracts with a number of local authorities across England, providing care and support to 9,600 people each week, but no longer has a contract with Haringey. A number of councils utilise private healthcare providers to provide care services across their authorities. If you are a council, are you aware of how your contracted care staff are paid? Or perhaps as a private healthcare provider yourselves, are you complying with the NMW?
In accordance with the National Minimum Wage Regulations 2015, workers are entitled to be paid NMW average hourly rate, by reference to their working time averaged over a particular pay reference period. Workers over 25 are also entitled to be paid the higher National Living Wage (“NLW”).
What counts as working time?
All time spent actually working is counted as time work, as is travel time where an individual is travelling on business during normal working hours.
Deciding whether workers in the care sector are “actually working” during sleep-in arrangements such as these, can be difficult and has been the subject of much consideration by tribunals over the years.
If those on-call workers are not simply “available” for work, and are in fact working, all of their time spent working should be included for the purposes of calculating the NMW.
If they are only “available” to work as opposed to “actually working”, special rules apply under the regulations:
- Where the worker sleeps by arrangement at or near a place of work and is provided with suitable facilities for sleeping, time during the hours they are permitted to use those sleeping facilities for sleeping shall only be treated as working time when the worker is “awake for the purpose of working”.
- Where the worker sleeps by arrangement at or near a place of work but is not provided with sleeping facilities, the worker is treated as working for the whole time that they are "available at or near a place of work for the purposes of working and required to be available for such work”.
Therefore, when employing or contracting workers in the care sector, consider whether any “stand-by”, “on-call time” and “travel time” arrangements constitute working time - both for the purposes of calculating NMW / NLW but also for calculating appropriate rest breaks in accordance with the Working Time Regulations. Failure to comply with either can have serious implications for organisations.
The onus is on the employer to prove that their workers are being paid appropriately. Keep full records of hours worked and payment made to workers. The care sector is increasingly subject to scrutiny on how its workers are paid and it is important to ensure that your organisation is aware of how the NMW framework operates and how it could affect your workers or contracted workers.
Further information and legal support
If you would like more information about this please do not hesitate to contact any member of our Employment Team.