Last week, the NHF published its final version of its new Code of Governance and made some important changes from the previous draft that will impact on those housing associations looking to adopt it.
ESPARON T/A MIDDLE WEST RESIDENTIAL CARE HOME V MISS SLAVIKOVSKI
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.
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:
- Checking on residents every 40 mintues-1 hour, depending on their needs;
- Changing incontinence pads; and
- Training new staff at night.
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:
- She was required to work during her sleep-in shift; and
- She was entitled to be paid simply for being present at the Respondent’s premises.
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:
- An employee is paid simply to be somewhere and is entitled to pay throughout the shift e.g. a night watchman; or
- An employee is present to be “on-call”, is provided with sleeping accommodation and not working the whole time and therefore paid only for when they are actually working.
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:
- Miss Slavikovski was actually carrying out work during the night (as opposed to being deemed to be) by checking on the residents etc. and that she was required to do this.
- Miss Slavikovski was entitled to be paid for simply being on the premises, regardless of whether she worked or not and regardless of whether she was carrying out her usual (core) duties. The Employment Appeal Tribunal attached a lot of weight to the fact that the reason Middle West required Miss Slavikovski to undertake night shifts was because of the statutory regulations concerning staffing in care homes. They referred to the following extracts from the Care Homes Regulations 2001 (now replaced) (number 18):
“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.”
- Perhaps surprisingly, it does not appear to have been considered whether due to the method of payment, Miss Slavikovski was working unmeasured time, as opposed to time work. However, if they had this would have resulted in the same conclusion as there was no daily average agreement in place and the Tribunal concluded she was carrying out duties throughout the sleep-ins.
- The Employment Appeal Tribunal focussed heavily on the statutory regulations and their requirement to have experienced persons “working.” This seems to us to be deciding a National Minimum Wage case using other legislation to define what is “working” time as opposed to the National Minimum Wage legislation itself. This issue is unlikely to have been in the mind of the people drafting the CHR legislation.
- Looking at the employment contract wording, taken literally, providing back up in emergency situations would not necessarily comply with the Regulations, if working means actually working. We therefore consider that if the words, “To comply with the Regulatory requirements,” had not been present there may have been a different outcome.
- Providers may wish to consider their contracts with commissioners and service users and revise the descriptions of any services that require care staff to be “working” night shifts, as opposed to “on-call.”
- This case generally highlights the importance of care workers recording when they are actually working on a sleep in as this would have avoided one of the issues in this case namely the dispute as to when the care worker was working. This is relevant to both time work and unmeasured work.
Other interesting points to note
- HMRC had determined that staff on the same terms as the Claimant were being paid the National Minimum Wage. It is interesting to note that HMRC and the courts have been taking differing approaches. This means providers face different levels of risk when facing an employment tribunal claim or being inspected by HMRC.
- Interestingly (but irrelevant) - during the employment tribunal case, Miss Slavikovski’s (now former) partner Mr Carr, had given evidence for her. Before the appeal judgment was issued, Mr Carr contacted Middle West to inform them that he had requestd that Miss Slavikovski’s solicitors withdraw the claim and explaining that Miss Slavikovski had confided in him that she had slept through her night shifts, concluding that it was “fundamentally wrong,” for the claim to have been issued that it was, “disingenuous,” and, “an abuse of the legal system.” A review of the decision was therefore sought. This was denied on the grounds that the credibility of the evidence was questionable (given it was based on hearsay) and that it did not materially affect the decision as it had been decided that whether or not the Claimant slept during the shift was irrelevant, the key point was the reason why she was there and if she was “on-call”.
- There was no consideration of the decision in the Whittlestone case at the time of the judgment however the judge considered this afterwards and commented that the decision appears to be entirely consistent with the Whittlestone decision.
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.
- We therefore suggest providers should (if they haven’t already):
- review their existing arrangements to see if the National Minimum Wage is being paid for all staff who work sleep-ins;
- if they are not, structure arrangements so as to be in the best possible position to argue the individual is working unmeasured work; and
- review contractual arrangements with commissioners or service users to ensure they are consistent with an argument that an employee is not working throughout a sleep-in.
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