By Debbie le Quesne

Ruling to send shockwave through the care industry

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Nestling in the columns of Brunswicks’ Care Review are details of a legal ruling that is about to see wages of some carers rocket while simultaneously providing another hurdle for hard-pressed providers.

The issue centres on whether a care worker should be paid the National Minimum Wage for ‘sleeping night duty’.

It’s an old chestnut that until now has escaped a legal precedent.

But now we have a definitive view, as expressed by the Employment Appeal Tribunal which very recently had to consider the point in Esparon (trading as Middle West Residential Care Home) v Slavikovska

The case wins a large editorial display in the Brunswicks’ publication. I quote: “In short, the decision is that a worker who undertakes sleeping nights must be paid for all of the hours ‘at work’ whether awake or sleeping.

“Care providers can be expected to have a deluge of requests for payment by workers when they become aware of the ramifications and effect of the decision.” Indeed!

The case arose because of the Home Office making it a condition of employing Ms Slavikovska that the employer paid her £7.02 per hour.

HM Revenue and Customs had previously conducted an audit of the provider and determined that staff employed on the same terms as Ms Slavikovska were being paid National Minimum Wage!

Let me quote some more, so there’s no misunderstanding: “Another decision covering this and another issue, namely, whether domiciliary workers should be paid for travel between service users came before the Employment Appeals Tribunal, although one differently constituted from that in the Slavikovska case.

“In Whittlestone v BJP Home Support Limited, Langstaff J, held that a care worker who was required to sleep-in premises in which three learning disabled adults lived in case they should need help in the night was ‘’working’ and accordingly, the NMW applied to all the hours.

“Further, and it should be of great concern to domiciliary providers, Langstaff J, also held that when travelling between assignments at the homes of a number of different service users throughout the day, that time too should be regarded as ‘time work’, to use the technical phrase, and is to be paid for at not less than the NMW.“

Editor Keith Lewin rightly says in his piece that it will “send shock waves throughout the sector.”

With that thought, I’ll bow out of the blog for the long weekend. Have a great bank holiday.

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