Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
This has led to areas of dispute and interpreting the law wrong can prove costly. The Government has decided to consolidate the law into one set of Regulations. These have been published in draft and the Government has launched a consultation which provides an opportunity to comment on areas where the law is unclear.
One area in desperate need of clarification relates to sleep-ins. Many employers who provide care and support are under pressure to change their pay arrangements for staff working sleep-ins. These staff are typically paid an allowance that is less than the minimum wage because they are allowed to sleep throughout the shift unless they are disturbed. The pressure for change is because two recent cases found that workers should be paid the minimum wage for every hour of a sleep-in. Those cases conflict with the Government’s own guidance on sleep in arrangements which provide “workers are not entitled to the minimum wage while they are on standby or on call and are asleep or entitled to sleep”. The guidance seems to reflect the recommendations made by the Low Pay Commission when the National Minimum Wage was introduced. A Court of Appeal case has previously found that a worker was not entitled to the minimum wage for every hour of a sleep in where the work was treated as unmeasured work. This consultation presents an opportunity for the housing sector to influence the law on this key issue so take your opportunity to contribute. The consultation closes on 15 September 2014.
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This article was first written for Inside Housing. To see the article on the Inside Housing website, click here.
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