Sleep-ins and the National Minimum Wage

Transcription

1 Sleep-ins and the National Minimum Wage Guidance for Negotiators and Organisers The issue Recent case law has established that sleep-ins are covered by the National Minimum Wage (NMW) regulations. So even if a worker is allowed to sleep at work, if they are required to stay at their workplace, then all their hours are covered by NMW regulations. This means if any worker is paid - on average less than the National Minimum Wage over their pay reference period 1, they will be entitled to a pay rise. They may also be entitled to back pay but because working patterns vary enormously between individuals; this will need to be done on a case-by-case basis. This issue will particularly affect our low paid members in the private or community and voluntary sector who do regular sleep-ins. Members who are paid significantly above the NMW and who do sleep-ins are unlikely to be affected, because their pay will not to fall below the NMW on average over the pay reference period. This will also affect personal assistants, whom UNISON has started to organise in two pilot projects, and have a wider citizenship impact on members, including disabled members, who either employ personal assistants for sleep-ins or pay for such care out of a personal budget. This does not affect workers who are on-call and are not required to be near their workplace. It also does not mean that sleep-ins have to be paid at the NMW level, but just that, overall, total pay for total hours worked must be at least the NMW. Examples Worker A is paid weekly. They work 30 hours a week at 7 / hour They also do two sleep-ins of 10 hours each, each of which is paid at 30. Overall, they have worked 50 hours, and have been paid 270. Their average hourly pay is 5.40 an hour, which is less than the NMW. So they are entitled to a pay rise to at least the NMW level overall, and possibly back pay. Worker B is paid weekly. They work 30 hours a week at 8 / hour They also do one sleep-in of 10 hours, for which they are paid 30. Overall, they have worked 40 hours, and have been paid 270. Their average hourly pay is 6.75 an hour, which is more than the NMW. So they are NOT entitled to a pay rise, under NMW regulations. 1 The pay reference period is the time over which the worker is usually paid - usually monthly or weekly. 1

2 Employer responses Many employers in the care sector are reliant on public service contracts where funding has been repeatedly cut. They are frequently in poor financial shape, and many are already cutting pay and conditions of staff. Potential employer responses include: Increasing pay for staff for sleep-ins or basic work. In certain cases this may be financially difficult, but some private providers and housing associations are making healthy profits 2. Asking commissioners to meet the extra costs. This may take a concerted campaign and working with UNISON members employed in the public sector. Reducing pay, terms and conditions of other staff to maintain the same overall pay envelope. Changing working arrangements, to limit the number of sleep-ins that staff are allowed to undertake. Replacing sleep-ins with a waking nights system. Other erosion of conditions including cuts to hours, zero-hours contacts etc. If there are a significant number of legal cases taken for back-pay, or if the pay envelope increases beyond available funds, it is also possible that some employers could be forced into liquidation and the workers may be made redundant. Different approaches This issue requires a balance between winning pay our members are legally entitled to; recruiting new members by demonstrating the power of the union; and realistically engaging with employers. Because the law has been clarified, many employers will have to examine their working arrangements sooner or later to ensure compliance with the law. The legal approach The law is a useful tool in pushing employers to change current arrangements, and potentially for back pay claims. We must support individual members legal cases with a reasonable chance of success, not least because no-win no-fee lawyers may see this as an opportunity. However, as individual working patterns vary so much, assembling sufficient evidence for back pay claims is likely to be difficult and timeconsuming, and mass litigation is unfeasible. Where there may be an individual case, a case form must be completed and clear evidence attached including copies of pay slips and rotas. All cases should be referred to UNISON Legal Services (not Thompsons) contacts below. Taking legal claims is slower and more expensive than negotiating, where that is an option. It may also push employers into liquidation. However, where employers refuse to negotiate this option should be explored

3 The negotiating approach Our preferred approach is to negotiate. Facing potentially large legal costs, employers have a strong incentive to talk to us. Where we don t have recognition, this issue may open doors to negotiate. There are different ways that this issue can be resolved. Securing the NMW for all time spent on sleep-ins is the most transparent solution, and ensures that staff will not fall below the NMW. However, this is also more costly. However if employers change the basic pay rate or restrict the number of sleep-ins, a robust system needs to be in place to ensure the NMW is met overall. Workers may be on different rates of pay, and local managers may not follow company policy. Where employers will engage: 1. Scope the scale of the problem, including existing and past arrangements. This is likely to require information from local managers, staff and members. 2. Push the employer to find additional funding to cover additional costs, and raise the issusue with commissioners. Work through UNISON contacts with commissioners and councillors to raise the issue with public bodies. 3. Consult with members over potential changes to working arrangements, and timescales. 4. Seek to recruit and find workplace contacts and reps. 5. Include the costs of back pay, including higher holiday pay, in negotiations. Push the employer to open their financial books if they plead poverty. Take legal advice from UNISON on a realistic valuation of potential claims. 6. Identify a timescale to implement changes to working conditions, pay, and any back pay. 7. Ballot affected members on the outcome. Individual members will have to sign compromise agreements. If employers change working conditions without consultation with UNISON, it may start the legal clock ticking for back pay claims, and this require immediate action. New pay deals Negotiators should raise this issue as part of all pay negotiations, and ensure they have sufficient information to understand the implications of any pay deal for staff undertaking sleep-ins. They should not agree to any arrangements which potentially leave staff in a situation where workers are paid less than the NMW over their pay reference period. Procurement This issue is likely to predominantly affect outsourced staff, and may increase the costs of contracts for public sector commissioners. Local Government and Health branches should engage with their employers about how they will fund contracts to UNISON members in outsourced services get properly paid. 3

4 Organising and recruiting This is obviously an excellent issue to use to recruit and organise. It shows UNISON is working on workers side, although we should not claim that extra money can come out of nowhere. Workers providing residential care are especially likely to be affected, so start by identifying employers providing residential care. The attached survey form will help you get information to form a bargaining position. Members and non-members can circulate it to their colleagues and then return it to you the worker who organises this is the potential UNISON rep. Further information A survey form to use to collect key information from workers is attached. There is a factsheet on the National Minimum Wage at Advice on organising in social care is available from UNISON s Strategic Organising Unit. Contact Susan Cueva, lead on social care, at s.cueva@unison.co.uk. All legal cases should be referred to UNISON Legal Services. The contacts for this, and further legal guidance on this issue, are: Shantha David (for England / Wales / N. Ireland) s.david@unison.co.uk. Suzanne Craig / Peter Hunter (for Scotland only) s.craig@unison.co.uk / p.hunter@unison.co.uk Other bargaining advice and information on company finances, is available from the Bargaining Support Group at bsg@unison.co.uk. 4

5 Appendix A National Minimum Wage & Sleep-in Shifts Case Digest The National Minimum Wage is the rate of pay guaranteed by law for all UK workers over school age, who are not on a training programme. The law sets an hourly rate, currently , which must be paid for each hour worked. Some employers have argued that when a worker is sleeping they cannot be working, so do not need to be paid the NMW. Several legal challenges have been made to this interpretation by employers, with mixed results. The NMW Regulations set out 4 types of work: time work, salaried work, output work and unmeasured work, with reference to how the worker s pay is calculated. The Regulations then provide that the employer must pay no less than the statutory minimum hourly rate for each hour worked, calculated by dividing the total pay by the number of hours worked in that pay period. Importantly, the Regulations do not define the meaning of work. However, they do provide that in certain circumstances a worker should be deemed to be working for the purposes of the NMW even when she is not working. Those circumstances are when the worker is required to be at or near her place of work and when she is travelling between places of work. One exception to this deeming rule is where the employee is given sleeping accommodation in the workplace and is allowed to sleep. This exception, in Regulations 15 and 16, is the cause of the confusion in relation to sleep workers, that is, those workers whose job involves sleeping on the employers premises. The Case Law In two of the earliest cases the Courts in both Scotland and England found that when a worker was allowed to sleep during a night shift, they were nevertheless working throughout their shift. In British Nursing Association v Inland Revenue, the House of Lords held that nurses, who were at home taking telephone bookings during the night, were working when they were not physically on the telephone and could sleep if they wanted. In Scottbridge Construction Ltd v Wright, the Court of Session found that the claimant was working for the 14 hours of his shift as a night watchman, including when he was sleeping in facilities provided, and not just the 4 hours during which he performed physical tasks. Following these two decision there were a number of EAT decisions considering various night workers who slept during their shift and found that they were working throughout. In Burrow Down Support Services Ltd v Rossiter, the claimant s job was night sleeper in a care home; in MacCartney v Oversley House Management, the claimant was a sheltered housing warden who lived on site; and Anderson v Jarvis, the claimant was a hotel manager, who had to sleep in the hotel. 3 At the time of writing, the adult rate of the National Minimum Wage is This will rise to 6.50 from 1 October Other rates apply to young workers and apprentices. 5

6 It seemed as though the law was settled on the point until 2 EAT judges in succession distinguished all of the cases discussed above and found against the claimants. In South Manchester Abbeyfield Society v Hopkins & Woodsworth the claimants were housekeepers at sheltered accommodation who slept in a flat onsite when they were on duty. The EAT held that they were not working but were on call and so were not entitled to NMW during the time they were sleeping in the flat. In City of Edinburgh Council v Lauder and others, the claimants were 15 sheltered housing wardens who were required to remain in their onsite accommodation during the night in case any of the residents needed help. The EAT held that the requirement during the night was not the claimants core job and did not attract NMW. Now, two further EAT have, it would appear, restored the previous position that when a worker is employed to be at the employer s premises during the night to meet a need of the employer s, then they are working and should be paid NMW. In Whittleston v BJP Home Support Ltd, the President of the EAT held that a home carer who did sleepover shifts in the client s home was working throughout the night, including when she was asleep. In Esparon T/A Middle West Residential Care Home v Slavikovska, the claimant was employed as a care worker in a residential care home who was required to work sleep-in shifts. Here the EAT again found that she was working throughout the shift and pointed to the fact that there were statutory requirements of the employer to ensure such people were employed at all times to ensure the safety of the residents. BIS Guidance Despite the two judgments in Whittleston and Slavikovska, the Department for Innovation and Skills is still issuing guidance 4 that states that a worker in a residential home who is permitted to sleep unless they are required to care for a resident, is entitled to NMW while caring for the resident but is silent about the time when the worker is sleeping. In light of the case law discussed, this guidance, which has no legal authority, is out of date and should not be relied upon. Having said the above, if there are selected employers who refuse to recognise us and negotiate through this, then we need to be prepared to use litigation to force them to engage with us. 4 _guidance_on_calculating_the_minimum_wage April_2014 1_.pdf 6

7 Sleep-in pay survey Recent case law means that workers who are low paid and do sleep-ins may be entitled to a pay rise. UNISON is campaigning on behalf of our members to get their full rights at work. If you are not yet a member, join today! About you Name... Employer... Usual place of work... Are you a UNISON member? Yes / No Mem. No. (if known)... Contact details Phone number (personal)... address (personal)... Your pay 1 What is your normal rate of pay?... per hour 2 Do you work sleep-ins (where you have to be at your workplace)? Yes / No 3 How much are you paid per sleep-in?... flat rate OR... per hour 4 How often do you get paid? Monthly / Weekly / other :... 5 How long do you normally work over this period?... hours DO include sleep-ins, DON T include on call time away from your workplace. 6 How much do you normally get paid over this period?... DO include payments for sleep-ins, DON T include payments for on call. Please copy this survey and pass it on to your colleagues. All information in this survey will be kept completely confidential Return this survey to Deadline Name / Address (local contact or organiser) Date... 7