A recent Employment Appeal Tribunal found that a night care worker required to sleep in at a service user’s home was entitled to be paid the National Minimum Wage (NMW) for all hours worked, including time spent asleep.
In the case of Focus Care Agency v Roberts, Brian Roberts was employed as a care worker by the charity Mencap providing a “supported living service” to individuals in need. During night shifts two care workers were sometimes required; one would be the primary carer required to remain awake at all times, and the second would be a “sleep-in” carer required only to assist in the event of an emergency. The “sleep-in” carer would be provided with sleeping facilities and paid a flat rate of £29.05 for a 9 hour shift.
The tribunal found that Mr Roberts had a specific clause within his contract of employment stating that the contract superseded any previous written or oral agreement between the employer and employee. Despite Mr Roberts being informed orally during his job interview that “sleep-in” night work would only be paid an allowance, his contract over-ruled the agreement and didn’t mention a lower rate of pay. Therefore on shifts where Mr Roberts was a “sleep-in” care worker he was entitled to be paid the NMW as he was required to use his professional judgment to decide if any intervention was required.
This decision could have serious consequences for some social care providers regarding wage costs and potential claims for back pay. However, it is important to note that the decision in this particular case was based upon individual circumstances and the NMW would not always apply. Indeed, in similar cases shortly afterwards the EAT was unable to give a straight ‘yes’ or ‘no’ answer.
If you employ workers who are required to sleep in, please speak to your Backhouse contact to make sure that their employment contracts reflect the requirements of your business as well as complying with statutory regulations.
The Backhouse Team
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