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No entitlement to Minimum Wage for ‘on call’ carers

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London employment law solicitors were reminded again last week just how complex the UK’s minimum wage provisions are. In a decision that care provider organisations have welcomed, the Court of Appeal has held that carers who are on call overnight, but who are allowed to sleep during those times when they do not have to work, are not entitled to the minimum wage. UK employment lawyers will be interested in the decision in Mencap v Tomlinson Blake looking at the complex National Minimum Wage Act 1998 and the National Minimum Wage Regulations 2015, while care providers and care workers will be considering the wider impact of the decision. The cases turned on the application of the definition of ‘time work’ – and in particular whether on call carers sleeping in at a client’s home or in a nursing home, fall within the provision relating to availability for work.

On call carers – what’s the position?

Top employment solicitors have long recognised that there are very many work patterns – shift work, rotas and ‘on call’ requirements – that can make calculations for the purposes of the minimum wage legislation complicated. Many assignments in the care industry require on call carers to be available overnight in case the client needs assistance. For many care workers, this means sleeping at the client’s home address in order to be available should the need arise. Historically, care providers have paid on call carers who ‘sleep in’ in this way, a nominal amount – it is reported that Mencap, the Appellant in this particular case, paid a flat rate of £25.00 per night for on call carers – approximately £2.80 per hour. Employment claim solicitors will recognise that this is a figure well below the minimum wage.

Analysing the minimum wage legislation

The Mencap case in fact involved two different care providers and on call carers. The cases concerned on call carers who are required to sleep in at their client’s home but have no other duties overnight unless their client needs assistance. The Court of Appeal has distinguished these cases from those where workers are on call and ‘available for work’.

As Employment claim solicitors would expect, the Court of Appeal has analysed the minimum wage legislation in some detail before reaching its conclusions in the case. It recognised the significantly different structure adopted in the National Minimum Wage Regulations 2015 as compared to previous versions of these important regulations, although the 2015 iteration is intended as consolidating legislation rather than as changing the effect of the Regulations as they previously stood.

The Court of Appeal recognises 2 different types of ‘time work’ (as opposed to salaried hours work) arising from the legislation. Time work is work referenced to the time worked or a measure of output per hour – not only can it be ‘actual work’ but time work can include “…time when a worker is available at or near a place of work, other than his home.”. This is referred to as ‘availability for work’. Time work should be included in the pay reference period for determining whether the national minimum wage has been paid.

The Court of Appeal’s conclusions on availability for work

Having considered the legislation, and in particular the relevance of the reports and recommendations of the Low Pay Commission (which the Secretary of State is required to follow or explain to Parliament why not), the Court of Appeal found that to be ‘available for work’, a worker must be

- At or near a place of work – but NOT ‘at home’ (the Court of Appeal called this the ‘At Home Exception’); and

- And must be required to be – available for the purpose of working – but only hours when the worker is ‘awake for the purpose of working’ count for National Minimum Wage purposes.

When a worker is positively expected to sleep (the ‘sleep-in exception’)– as in the case of the ‘sleep ins’ in the factual scenarios before the Court of Appeal, and where facilities to sleep are provided, this time does not count for the purposes of the minimum wage legislation.

It reached this conclusion after an in depth analysis not only of the legislation, but also the relevant case law, going into some depth. In particular, the Court of Appeal considered the ‘multifactorial’ approach of the Employment Appeal Tribunal, from which the appeal had come in the Mencap case, was wrong. What the Court of Appeal does make clear is that the at home exception and the sleep in exception – which caught the on call carer in the Mencap case – only apply in the ‘available for work’ scenario and not the actual work scenario. The Court of Appeal also ventured that the at home and sleep in exceptions would be mutually exclusive; and that there would be no risk of employers exploiting the ‘at home’ exception in light of changed working practices which makes it more common for workers to work from home.

The real impact of the case

It’s important to note that back in 2017, Mencap agreed to pay on call carers the minimum wage for sleep-ins, following negotiations with UNISON. This case in the Court of Appeal ultimately concerned whether Mencap should also pay back pay to its on call carers who slept in in this way. Mencap argued strongly that this would bankrupt many smaller care providers.

More generally across the care industry, the case means that care providers can continue to pay an allowance for periods when a worker is expected to sleep while ‘on call’ – only being required to work if the situation requires it. When the worker does have to work, those hours should count for the purposes of the National Minimum Wage calculations.

London employment lawyers OTS Solicitors are on hand to support employers and employees with every aspect of Employment, from recruitment through to termination and beyond. We offer a high level of practical and intelligent advice on contentious and non-contentious matters and can provide comprehensive HR training and support with contractual documentation. To book an appointment with one of our top employment solicitors call 0203 959 9123.

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