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ESPARON T/A MIDDLE WEST RESIDENTIAL CARE HOME V MISS SLAVIKOVSKI
Summary
The Employment Appeal Tribunal has just handed down a decision that a care worker who was required to work a number of sleep-in night shifts at an employer’s care home was working “time work” for the purposes of the National Minimum Wage legislation and that every hour counted for minimum wage purposes. The Employment Appeal Tribunal gave particular weight to the fact that the employee was present to fulfil the employer’s legal obligations, under the statutory regulations relating to care homes, to have enough suitably qualified staff available on the premises at all times. It was essential for the employer that staff be there even if they did nothing. In the circumstances, the claimant was entitled to be paid simply for being on the premises, regardless of whether she was allowed to sleep on shift.
Facts
Miss Slavikovski was employed as a care worker at the Middle West Residential Care Home (“Middle West.”). Her contract stated under “On-Call Duty,” that:
“To comply with the regulatory requirements you are required to provide back-up in emergency situations.”
Miss Slavikovski therefore worked night shifts from 9pm – 7am for a flat sum of £25.
Miss Slavikovski stated that during this time she was required to undertake a variety of duties including:
Middle West’s case was that this was not true and, although she might work during the hours 9-10pm and 7-9am, she was paid by the hour for this and between 10pm and 7am she was able to sleep on site but had to be available for emergencies. The Employment Tribunal did not accept that she received hourly pay for any of the hours of the night shift because a night shift (for which she received £25) was stated to be from 9pm – 7am.
Miss Slavikovski brought her case on 2 grounds:
Employment Tribunal Decision
The Employment Tribunal decided that Miss Slavikovski was working time work throughout her night shift and therefore had failed to pay the National Minimum Wage. They found that Miss Slavikovski was not on call during the night shift but was actually carrying out time work, particularly referring to the need to check on residents every 40 minutes-1hour. Her evidence was accepted that she was not allowed to sleep on duty. The Employment Tribunal therefore did not consider the case law on whether employees were allowed to sleep or not whilst on call.
Middle West appealed this decision. The Employment Appeal Tribunal rejected their appeal.
The Employment Appeal Tribunal considered the relevant legislation on time work (Regulation 3 of the National Minimum Wage Act 1998) and the exemption that if a person is engaged on time work and they sleep at their place of work and are provided with facilities to do this, only the time when they are awake for the purposes of working will count for the purposes of the National Minimum Wage (Regulation 15.) The Employment Appeal Tribunal also considered many of the cases in this area and acknowledged that they are both fact sensitive and difficult to reconcile. The key difficulty highlighted was the difference between cases where:
They suggested that an important consideration in making this distinction is the reason why the employer requires the member of staff to be on the premises (see point 2 below).
Employment Appeal Tribunal Decision
The Employment Appeal Tribunal concluded that:
“The Registered person shall, having regard to the size of the care home, the statement of purpose and the number and needs of service users –
Ensure that at all times, suitably qualified, competent and experienced persons are working (Employment Appeal Tribunal’s emphasis) at the care home in such numbers as are appropriate for the health and welfare of service users…”
and at regulation 22:
“In order to safeguard the health, safety and welfare of the service users, the registered person must take appropriate steps to ensure that, at all time, there are sufficient numbers of suitably qualified, skilled and experienced persons employed for the purposes of carrying on the regulated activity.”
Comments
Other interesting points to note
What should care providers do?
There are now two independent Employment Appeal Tribunal cases which have concluded that employees carrying out a sleep-in duty are working for time work purposes. Unless a provider has structured its arrangements so as to be able to argue that its employees working sleep-ins are working unmeasured time they are at significant risk of failing to pay the National Minimum Wage.
If you would like to discuss your arrangements or related issues, please contact Matthew Wort on 0121 214 3501 or matthew.wort@anthonycollins.com.
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