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Care sector employment law
what you need to know

Melanie Stancliffe considers some of the main areas of employment law that affect the sector.

With Skills for Care estimating the social care workforce to be 1.48 million and that it will need to increase to meet demand for services over the coming years, social care is one of the UK’s largest and most complex from an employment law perspective. There is an array of complicated issues for employers to contend with, including flexible working; minimum wage requirements; working time arrangements; and holiday pay calculations.

The benefits of flexible working

Most businesses function on the basis of the flexible working hours of their staff. This is vital to enable you to meet the needs of your business and to operate profitably.

Looking at it from the point of view of employees, many will need some flexibility at some stage in their career – whether it’s due to family commitments or lifestyle choices. In an industry reliant on staff working shifts and not the traditional 9 to 5, with a large proportion of female workers, there are considerable advantages to flexible working.

Offering flexible working can have an overwhelmingly positive impact on a business: maximising the available labour sources; improved customer service; reduced absenteeism, sickness and stress; attracting a wider range of candidates, such as part-time workers; higher staff retention; and a greater sense of responsibility, employee commitment and loyalty. The historic objections based on the difficulty in monitoring performance are being soundly de-bunked, in favour of fluidity, improved culture and improved morale.

Flexible working is here to stay and it has benefits for employers who embrace it.

Flexible working process

Employees do not have a right to work flexibly, but they do have the right to request it. They can only apply once a year, but that request can give you an opportunity to discuss your structure and needs with the employee concerned. Changes can be proposed to working patterns, hours of work or location worked.

Once an employee puts a flexible working request in writing, you need to discuss it with them and come to a resolution within a reasonable period.

Depending on whether it fits with your business needs, you can agree or reject the employee’s request. In most cases, a compromise is achieved, which is designed to achieve what the business needs and to accommodate some of the individual’s requirements.

Points to consider when looking at flexible working arrangements with staff include:

  1. Ensure that you identify the core business needs (eg the need for workers’ presence in core hours to meet Care Quality Commission (CQC) requirements).
  2. Communicate that openly with the employee.
  3. Operate any agreed changes on a trial basis initially and evaluate how well they are working after an agreed period.
  4. Carefully formulate policies to establish the standards required of care workers during their working time.
  5. Monitor the individual’s attendance and performance. A business can terminate the flexible working arrangements during the trial period or at any time thereafter if there are concerns.

The minimum wages

Despite the atypical working arrangements of many individuals working in social care, those classified as ‘workers’ (which includes agency workers and employees) are entitled to be paid no less than the National Minimum Wage (NMW) or National Living Wage (NLW) for the work they carry out.

There are different rates for different age groups of workers and the rates increase every April. The biggest change over the last year has been the introduction of the NLW for workers aged 25 and over. They are now entitled to the NLW which is £7.20/hour (before deductions).This will increase to £7.50/hour in April 2017.

The appropriate rate must be paid for the time that workers are:

  1. At work.
  2. Travelling on business during normal working hours (this does not always include travelling to and from work).
  3. Attending training during normal working hours.
  4. In specific circumstances, on stand-by or on-call.

This isn’t cut and dry, though. The law is complicated around paying travel time for domiciliary care workers, as well as pay for workers on stand-by or on-call, such as those who have sleeping time as part of their contractual arrangement.

There have been recent developments regarding these more complex aspects of employee pay. For example, the Care Act statutory guidance, states, ‘When commissioning services, local authorities should assure themselves and have evidence that service providers deliver services through staff remunerated so as to retain an effective workforce. Remuneration must be at least sufficient to comply with the national minimum wage legislation for hourly pay or equivalent salary. This will include appropriate remuneration for any time spent travelling between appointments.’

This was brought to light last year when an ex-employee brought a legal case against MiHomeCare after she was not paid for the time she spent travelling to and from appointments. Lawyers in the case argued that without payment for her travel time, the employee was being paid less than the minimum wage per hour. The company settled the case agreeing that the employee should have been paid for travel time.  As the employer’s decision in this matter was a settlement and not a court decision, it is not binding.

Unfortunately, there is no set guidance on this matter. The leading decision is the ‘Tyco decision’ where the European Court of Justice held that for peripatetic workers, who are not assigned to a fixed place of work, the time spent travelling from their home to their first assignment, and from their last assignment back to their home, should constitute working time. However, the decision in Tyco does not affect payment of the National Minimum Wage for travel time.

The cases regarding the obligation to pay the relevant minimum wage during ‘sleeping’ time, whilst on-call and time spent travelling, is constantly developing. For any businesses whose workers undertake these tasks, you must keep abreast of developments, keep clear records and accurately calculate your staff’s wages. It is recommended you get professional advice around these aspects of pay.

Working Time Regulations

With many care workers undertaking flexible working practices, it is important that you are aware of Working Time Regulations and the implications on working patterns. Working Time Regulations were designed to protect the health and safety of those legally called workers (and employees). The minimum obligations are:

  1. Working time – the average working time (including overtime) of each worker/employee must not exceed 48 hours per week and eight hours per day on average. A worker can opt-out of this 48-hour limit.
  2. Rest breaks – workers should be given adequate rest breaks. This includes 11 hours’ uninterrupted rest per day, 24 hours’ uninterrupted rest per week, and a rest break of 20 minutes when working more than 6 hours per day.
  3. Leave – workers are allowed 5.6 weeks’ paid holiday each year (this can include public holidays). This means a full-time worker has the right to take, and be paid for, 28 days for each complete year that they work (pro-rated if they work part time or leave part-way through the year).

Social care must also cater for the more onerous requirements of care workers undertaking night work. Night-time work is generally defined as the period between 11pm and 6am. Individuals are night workers if they regularly work at least three hours during the night.

Under the Regulations, night workers must be provided with enhanced protection such as:

  • The opportunity to receive a free health assessment when starting night work and at regular intervals thereafter.
  • Being transferred to day work where possible, if a doctor has advised that the night work is causing health problems.
  • For those doing work involving special hazards or heavy physical or mental strain, not to work more than eight hours in any day.

Employers can enter into an agreement which modifies or excludes the limits on night work. A commonly used example is to redefine the meaning of ‘night time’. These agreements are particularly useful for those who wish to engage live-in carers. However, such agreements are not always suitable or possible and professional advice, good record-keeping and monitoring are essential.

Holiday pay

Under the Working Time Regulations, a worker is entitled to be paid during statutory annual leave at a rate of a week’s pay for each week of leave. The pay figure is calculated in accordance with the complicated ‘week’s pay’ rules, which depends on a number of factors and a distinction between the workers with ‘normal working hours’ and those ‘without normal working hours’. Due to the fluctuating hours and atypical working patterns within social care, paying the correct holiday pay requires attention.

A distinction must be made between these two types of worker:

  • A worker with ‘no normal working hours’ – for these workers, a week’s pay is calculated as an average of all remuneration earned in the previous 12 working weeks. This remuneration figure should include any overtime and commission. You cannot pay the contractual salary figure alone.
  • A worker with ‘normal working hours’ – in this case, a worker will have their week’s pay calculated with reference to their normal working hours. This usually means that their holiday pay is based on their basic salary only. Pay for this purpose disregards any overtime hours (except if they are guaranteed compulsory overtime) and excludes additional commission, overtime premiums or allowances from the computation.

Agency, employee or worker?

The nature of social care can throw up complex employment law issues. Defining which obligations are owed to which individuals can be a minefield because there are three different legal statuses, each with its own obligations.

Most of the legal requirements discussed above apply to the category of ‘workers’.  A ‘worker’ provides their own services but has a significant degree of control over how they work, when they work and how they carry out their work. They can work through an agency or even their own company.

‘Employees’ are under the control of their employers. They provide their own services and they cannot refuse to do the work required of them. Employees benefit from stronger legal protections than workers (eg employees are entitled to minimum notice periods and to not be unfairly dismissed). The third category is a genuinely self-employed individual. They are only entitled to the rights in their agreement with the person for whom they work.

There are key touch points which help define the status and rights of the employee:

  1. The type of contract/offer provided to the individual.
  2. The ‘label’ applied – whether it’s employee, worker or self-employed.
  3. How you deal with absences or the failure to perform to CQC requirements.
  4. Who provides the DBS check,
  5. Whether the individual is paid against their own invoice.
  6. The wording of any termination or warning letter.

It is clear that employment law in social care is complicated. This article only touches on some of the points for consideration. You need to be thorough, informed and clear with your staff, policies and processes, but if you’re ever in any doubt, it is recommended you seek professional advice.

Melanie Stancliffe is Employment Partner at Irwin Mitchell LLP. Email: Twitter: @irwinmitchell

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