Slides from Nicola Brown's presentation at Care Showcase 2016, including: National Living Wage, Sleep Ins and Travel Time

1. Care Showcase 2016
Employment Law Essentials for
Social Care
Nicola Brown

2. 1. The National Living Wage
2. Tricky time issues (including travel time
and sleep ins)
Topics for today

3. 1. National Living Wage

4. What is the National Living Wage?
• A surprise announcement in the Budget in
July 2015
• To take effect for pay reference periods
starting after 1 April 2016
• A top rate of National Minimum Wage
– but only for workers aged 25 or over

5. What is the National Living Wage?
• The NLW rate from 1 April 2016 will be
£7.20 per hour (as compared with current
NMW rate of £6.70 for over 21s)
• The Government has said it intends the NLW
to be £9.00 per hour by 2020.

6. What the National Living Wage isn’t
• NLW is not the same as the Living Wage
• Living Wage is a voluntary rate calculated
according to the basic cost of living
• Set by the Living Wage Foundation and is
currently slightly higher than the NLW, £7.85
per hour (£9.15 in London).
• Confusion of terminology

7. How will the NLW be enforced?
• Announcement made in September
• Fines for non-payment will double to 200%
of unpaid wages for each underpaid worker
up to a maximum of £20,000 (this is in
addition to the arrears)
• Enforcement budget being increased
• Directors’ liability

8. Legal points to be aware of
• Dismissal of an employee because they
qualify for NLW will be automatically unfair
• No minimum period of service, no maximum
compensation
• Also could amount to age discrimination

9. What does this mean for employers?
• Average increase for full time employee is
£900 pa
• Loss of control over staff pay
• May mean redundancies or cutting back
other benefits
• Narrowing the gap between grades?

10. What does this mean for employers?
• Up to 1m of the 1.4m workers in the care
sector will get pay rises by 2020
• NLW will cost an estimated £1bn to the
sector
• Funding gap - could lead to a ‘catastrophic
failure’ unless extra money is found

11. 2. Tricky Time Issues –
Travel Time and Sleep Ins

12. Sleep ins – relevant law
• Working Time Regulations 1998 (‘WTR’)
• National Minimum Wage Regulations 1999
(‘NMWR’)
These operate differently in relation to
sleeping in workers!

13. WTR (1)
• Time spent by a worker at their workplace
whilst ‘on call’ is working time even when a
worker is provided with sleeping facilities
and permitted to sleep.

14. WTR (2)
• Basic rules:
• a working time limit of 48 hours a week
(unless individual has opted out).
• a minimum rest period of 11 hours between
the end of one working day or shift and the
beginning of the next (can be varied
provided that compensatory rest is given).
• a minimum weekly rest period of 24 hours,
which can be averaged over two weeks.

15. NMWR (1)
• NMW legislation says all workers must be
paid NMW when undertaking work (current
limit for adult workers £6.70 p/h).
• NMW says that some allowances do not
count towards calculating NMW if not
consolidated into basic pay (e.g. London
weighting, unsocial hours).

16. NMWR (2)
• Where 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.
• A sleep in allowance could be taken into
account when calculating average hourly
pay over a pay reference period (Smith v
Oxfordshire Learning Disability Trust
(2009)).

17. NMWR (3)
• However, NMW may be payable while the
employee is asleep if the employee’s job is
to be present.
• E.g. a night security guard (Scottbridge
Construction v Wright (2003)), or a carer
required to sleep at a disabled person’s
home (Whittlestone v BJP Home Support
(2014))

18. NMWR (4)
• In such cases they are not just ‘available for
work’ they are actually working (even if
asleep).
• Whether there are ‘core hours’ may also be
relevant (South Manchester Abbeyfield v
Hopkins (2010) and City of Edinburgh
Council v Lauder (2011))

19. NMWR (5)
• Recent case:
• Shannon v Rampersad and another (t/a
Clifton House Residential Home) (2015)
• Lived in a flat on site
• Required to be available to assist 10pm-
7am (in addition to night care worker)
• Not entitled to NMW as he was ‘at home’

20. • All cases are examined by Tribunals based
on individual facts
• There are ongoing calls in the EU for
changes to consider ‘inactive’ and ‘active’
work.
• Contracts and policies need to be clear.
Note

21. • Some employers pay staff only for ‘contact
time’
• Travelling time does count as working time
for Working Time Regulations purposes*
• Likewise, for NMW purposes, travelling for
business purposes also counts as working
time
Travel time (1)

22. • Recent WTR case on peripatetic workers
• Federacion de Servicios Privados del
sindicato Comisiones obreras v Tyco
Integrated Security SL (2015)
• Time travelling to first and last appointment
of the day does count as working time
Travel time (2)

23. • The law on NMW is not affected by the Tyco
decision
• The NMW regulations specifically state that
the journey from home to the first
assignment and the journey to home after
the last assignment do not attract NMW.
• However, it is possible this may change in
future
Travel time (3)

24. • Estimated 1 in 10 are paid below NMW
• ‘Call cramming’
• Investigations underway by HMRC
• Promise to ‘name and shame’ those who
have failed to pay NMW
Travel time (4)

25. • It is not unlawful for a worker’s pay to be
calculated using only their contact time.
• However, their total pay divided by the total
‘working time’ (i.e. contact time plus travel
time) over the reference period needs to be
at or above NMW.
• What about zero hours/gaps between
appointments?
Travel time (5)

26. Questions and
Answers

27. Contact details
Nicola Brown
Pure Employment Law
01243 836840
• nicola.brown@pureemploymentlaw.co.uk
• To find out more about Pure Employment Law
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