Care / support worker - sleep-in shifts - minimum wage

[blackfriar]

Hi there. I have been in my new job as a support worker for a well known, national care company since May of this year. I support people with physical and learning disabilities.

 

My job requires me to occasionally take "sleep-in" night shifts. The sleep-in shift begins at 22:00 and ends at 07:00, but most employees then do another full or half day shift.

 

For a sleep-in, the employee is provided with a single bedroom (which is incredibly dirty and untidy with mess/equipment everywhere I might add!) with no entertainment facilities, e.g. a TV.

 

For the duration of the sleep-in night shift, the employee is forbidden to leave the building and must be physically present, on site, at all times in case of an emergency requiring them to wake up and lend a hand to the waking night staff. The employee must clock in at the start of the sleep-in shift, as they would on any other type of shift, and of course clock out.

 

For this 9 hour shift, the payment is only a single £35.00 amount, but if the employer is called upon during the night and woken up, they are paid their standard rate of pay for each hour they are awake (which is £6.64/hour for me). In reality, 99.99% of the time, the sleep-in staff are never woken up.

 

The only part of my employment contract which specifically mentions sleep-in shifts, is the "Pay" section, which states "Your rate of pay for each sleep-in worked is £35.00. This payment is for 'on-call' services only." This equates to £3.88 per hour, for a 9 hour sleep-in night shift.

 

Subscription to Unison is an unmanageable expense at the moment, given the cost of living and my current wages, so what is the most effective way to deal with securing the minimum wage (at least!) for sleep-in shifts.

 

Any advice is very welcome. Thanks for reading.

Edited July 10, 2015 by blackfriar

[ericsbrother]

basically you are being paid a retaining fee so it doesnt count towards your working time. As you point out, if you are needed you get paid.

I would be enquiring as to whether it is considered earnings or not as you might be able to avoid paying NI contributions on the money.

[blackfriar]

basically you are being paid a retaining fee so it doesnt count towards your working time. As you point out, if you are needed you get paid.

I would be enquiring as to whether it is considered earnings or not as you might be able to avoid paying NI contributions on the money.

 

As I understand the current legal situation, I am entitled to earn the minimum wage for the sleep-in shift as I am a) on a shift at work b) required to be present, in the same way Firefighter is required to be present at the Station overnight, for example. I'm basing this on recent Judgements by the Employment Appeal Tribunal - e.g. 8th May 2014 MIDDLE WEST RESIDENTIAL CARE HOME v SLAVIKOVSKA.

 

In light of this, how should I go about getting the minimum wage from my employer for these sleep-in shifts?

Edited July 10, 2015 by blackfriar

[ericsbrother]

her case was that someone of her qualifications was legally obliged to be present (ie working or available) so it didnt matter if she slept or worked.

In your case is it a statutory or regulatory requirement to have someone (you) present? If so then you are entitled to the minimum wage (at least). If not then the water is much muddier but generally not considered part of working time.

I would be quoting the EAT reasoning for their decision and say that you want the minimum wage for the entire time you are present should the circumstance demand.

[blackfriar]

Another thought - being quite a naive person, and entirely new to shift work, on my first day of employment with the company I signed a form to "Opt out" of the Working Time Directive regulations. However, the senior employee who was guiding the signing of the documents very casually described this form as "something you just need to sign if you want to do more than 48 hours overtime per week... everyone signs it" (overtime comes with the territory in the care industry - this much I knew beforehand!) This was presented to me in the middle of signing what felt like a hundred other documents and was given the impression of having no significantly detrimental effect to my rights.

 

This is not an excuse for my ignorance at the time, though, and I can accept that now. I was given ample opportunity to read through every word (of what was a very, very long and wordy document!)

 

It's quite a difficult problem, as I don't know If I would make a case for NMW or WTD, or both. What I do know is:

a) the 9 hours sleep-in constitutes a significant part of my contracted 35 hours of weekly work, and it is not considered overtime or extra

b) I am paid just £35.00 this time spent at work (equaling an average hourly rate of £3.88)

c) I am required to be on site for the whole duration, and would be disciplined by my employer if I left the premises for even a minute

d) My job is to safeguard the service users, and I have completed training which is required for me to do my job (for example, Moving and Handling training to use potentially dangerous hoist equipment, and Physical Intervention training to safely and justifiably touch someone in a restrictive manner) and-

e) -this training clearly separates me from a brand new, untrained employee or someone "off the street" who would be unable to safeguard the service users AND also comply with regulations at the same time.

 

Thanks for your help so far, ericsbrother. I'm trying to get my head around my position before I get into any confrontations at work, as I'm sure you can appreciate!

Edited July 11, 2015 by blackfriar

[i hate bailiffs]

As I understand the current legal situation, I am entitled to earn the minimum wage for the sleep-in shift as I am a) on a shift at work b) required to be present, in the same way Firefighter is required to be present at the Station overnight, for example. ?

 

Over half of the fire service is retained ( called via pager)

When I was in the service I got paid £1800 per year to be on call for 120 hours a week!

Then was paid extra for calls/hours worked

[Mr.P]

on my first day of employment with the company I signed a form to "Opt out" of the Working Time Directive regulations. However, the senior employee who was guiding the signing of the documents very casually described this form as "something you just need to sign if you want to do more than 48 hours overtime per week... everyone signs it"

 

Not "everyone signs it". If you do not wish to work more than 48 hours per week, you can write to the employer withdrawing from the WTD opt-out. However, before you start making waves, how long have you worked for this company ?

[blackfriar]

Not "everyone signs it". If you do not wish to work more than 48 hours per week, you can write to the employer withdrawing from the WTD opt-out. However, before you start making waves, how long have you worked for this company ?

 

That's interesting. I've worked for them since the start of May, and have done 1 or 2 "sleep in" shifts per week since then. My partner also works for the same company, at the same site, and is also required to take sleep in shifts. That's 2 to 4 nights per week we sleep in separate beds, which would not be so much of a problem if we were being paid fairly for our time.

[blackfriar]

Over half of the fire service is retained ( called via pager)

When I was in the service I got paid £1800 per year to be on call for 120 hours a week!

Then was paid extra for calls/hours worked

 

I realised that was not the best comparison immediately after I typed it

[Emmzzi]

That's interesting. I've worked for them since the start of May, and have done 1 or 2 "sleep in" shifts per week since then. My partner also works for the same company, at the same site, and is also required to take sleep in shifts. That's 2 to 4 nights per week we sleep in separate beds, which would not be so much of a problem if we were being paid fairly for our time.

 

But you are being paid to sleep.

 

If this kind of job doesn't suit your relationship, you need to change your job or your relationship....

[silverfox1961]

Hi,

I suggest you start looking for another job. As soon as you raise this issue, they will probably get shot of you.

 

ACAS do a great FAQ on the minimum wage and it is they who you should contact if you want more info.

 

A friend of mine is in a similar situation. She is a carer but her area is so wide that for every 8 hours she is actually working, she only gets paid for 3 hours as the company does not pay travelling time and only gives 12p per mile fuel allowance after the first 25 miles per week.

[blackfriar]

But you are being paid to sleep.

 

If this kind of job doesn't suit your relationship, you need to change your job or your relationship....

 

I disagree with that. I am being paid £35.00 to be physically present on site for 9 hours at night. I am not being paid to simply "sleep" and the employer doesn't care if I sleep, or remain awake in the bedroom all night long.

 

If I were allowed to wander off site and go into town for a coffee, I could accept that argument. As I said, my partner are happy to perform sleep-in shifts but we want to be paid fairly for our time at work.

[Old Cogger]

Hi there. I have been in my new job as a support worker for a well known, national care company since May of this year. I support people with physical and learning disabilities.

 

My job requires me to occasionally take "sleep-in" night shifts. The sleep-in shift begins at 22:00 and ends at 07:00, but most employees then do another full or half day shift.

 

For a sleep-in, the employee is provided with a single bedroom (which is incredibly dirty and untidy with mess/equipment everywhere I might add!) with no entertainment facilities, e.g. a TV.

 

For the duration of the sleep-in night shift, the employee is forbidden to leave the building and must be physically present, on site, at all times in case of an emergency requiring them to wake up and lend a hand to the waking night staff. The employee must clock in at the start of the sleep-in shift, as they would on any other type of shift, and of course clock out.

 

For this 9 hour shift, the payment is only a single £35.00 amount, but if the employer is called upon during the night and woken up, they are paid their standard rate of pay for each hour they are awake (which is £6.64/hour for me). In reality, 99.99% of the time, the sleep-in staff are never woken up.

 

The only part of my employment contract which specifically mentions sleep-in shifts, is the "Pay" section, which states "Your rate of pay for each sleep-in worked is £35.00. This payment is for 'on-call' services only." This equates to £3.88 per hour, for a 9 hour sleep-in night shift.

 

Subscription to Unison is an unmanageable expense at the moment, given the cost of living and my current wages, so what is the most effective way to deal with securing the minimum wage (at least!) for sleep-in shifts.

 

Any advice is very welcome. Thanks for reading.

 

£5.00 more than my O.Hs rate when she did it! couple of years ago, there was a case when a chap took a company to court as he was told that is the only way to get it sorted, - he did and it cost a company fair amount of backpay/cost but sets no precedence it seems.

[Emmzzi]

https://www.gov.uk/minimum-wage-different-types-work/overview

 

What counts as working time?

 

Don’t include time spent:

not working but at the workplace or available for work at or near the workplace during a time when workers are allowed to sleep (and you provide a place to sleep)

 

 

http://www.pureemploymentlaw.co.uk/nmw-issues-travel-time-and-sleep-ins/

 

"When it comes to sleep ins, if a worker sleeps at or near a place of work, this is only treated as ‘time work’ for NMW when the worker is awake for the purpose of working. Employers who require staff to do sleep ins have often relied upon this to pay an employee a 'sleep in' allowance rather than an hourly rate whilst they are doing a sleep in shift. The case of Smith v Oxfordshire Learning Disability Trust (2009) found that a sleep in allowance could be taken into account when calculating average hourly pay over a pay reference period.

 

However, there is a developing line of case law that has shown that whether NMW is payable during sleep ins may depend on why the worker is present, and that Tribunals need to carefully consider this point. For example, in the case of Scottbridge Construction v Wright (2003) the worker in question was a nightwatchman, and the Court of Session found that his job was to be present (whether awake or asleep) and therefore he was entitled to be paid at least NMW for his entire shift.

 

A similar decision was reached in Middle West Residential Care Home v Slavisovka (2014), where the worker was required to be present to satisfy relevant regulations, as covered in our previous article here. Further, in the case of Whittlestone v BJP Home Support (2014) a carer was required to be present at a residence in order to safeguard 3 disabled service users during the night, she was found to have been entitled to NMW for her sleep in hours regardless of the fact that she had never, in practice, been called upon during those hours. (Mrs Whittlestone had also brought a claim in relation to NMW for her travel time between appointments, which also succeeded)."

 

Unless you wish to engage a lawyer and become a test case there is some way to go before there is total clarity on this point. You also say there are night shift staff on hand already? So yo may not be required to meet min. regs.

 

THerefore again; new job or new relationship!

[blackfriar]

Yes, I'm quite clear about the case law examples now. Basically, if you do a job which requires you to be present on site and you have a continued responsibility to remain on site, then this is covered by the WTD regs. I'm just not sure whether it is best to directly approach my management about this (a few people have warned against that here - thanks and duly noted) or invest the money in a Unison subscription and go that route.

 

Neither my partner nor my job will be tossed aside, but thanks for your advice Emmzzi

[Emmzzi]

I think you missed the point. It may or may not be covered, there are a lot of variables.

[silverfox1961]

It is my understanding that if you are paid at a rate higher than the NMW and then get £35 per shift on sleepover then if the average of the two rates still keeps you above the NMW then there would be little you could do.

 

Conversely if the two totals end up with a wage below the NMW they you 'may' have cause.

[ericsbrother]

The critical thing about whether the hours are covered by a statutory or regulatory requirement and this will depend upon the job. For example, an only nurse in a nursing home would have to be paid in full but not a care assistant if other staff that are prescribed as being necessay are there. It is not just about whether your employer says you cannot leave the site, it is about whether the law says that you must be present and there is a big difference, even if the end result is the same for you regarding your duties.