Employment Law News - September 2016
Natalie Ruane reports on the largest ever legal claim against the Care Sector, brought in September 2016, in relation to an alleged breach of the National Minimum Wage.
This claim has been brought against Sevacare who are contracted by the London Borough of Haringey to provide live-in carers to their elderly residents.
The key evidence in this case are payslips which appear to show that Sevacare paid staff £3.27 per hour for live-in care work for the 6 years leading up to 2016. This is less than half the minimum wage. The care workers received £550 for a 7 day week. The Claimants argue that this is based on a 7 day week, working 24 hours a day at £3.27. The claim has only recently been issued in the Employment Tribunal and a decision is not expected until the New Year.
The carers say that they were working 24 hours a day, and so should be paid for the remaining 14 hours of the day when they had to be available to assist the patient. In some cases, carers were allegedly unable to leave the patient’s home at any point during this period as they were essentially on-call at all hours during the day and night to provide assistance when required. One claimant states that they were in the home of an elderly woman with severe dementia for 7 days at a time, sleeping in her room and frequently attending to her needs through the night.
All of the care workers were on zero hours contracts. They raised the complaint that, had they turned down the hours allocated to them, they were concerned that they would be penalised by the company as a result.
Sevacare claim that the workers average hourly rate actually exceeds the minimum wage, and the £3.27 figure which appears on the payslips is simply a ‘quirk’ of their payroll system.
Sevacare disputes that the workers had been working 24 hours a day and has argued in its defence that the live-in care workers’ hours were covered by a “daily average agreement” which saw them paid £550 per week, based on a 7 day week, working 10 hours a day at £7.85 an hour.
Haringey Council, which was responsible for commissioning the care, is also being sued at the Central London Employment Tribunal for allegedly failing to ensure that the workers were paid properly. The Council has confirmed that they ended its relationship with Sevacare in April this year after previously raising “serious concerns with the Care Quality Commission”.
What the law says
This is a complicated area of law, and the answer in each case is fact sensitive. The starting point is that where a worker stays overnight at their place of work, and is provided with suitable facilities for sleeping, time when the worker is "awake for the purposes of working" shall be treated as working time (regulations 27(2) and 32(2), NMW Regulations 2015). If no sleeping facilities are provided in this situation the worker is treated as working for the whole time that they are at a place of work.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.