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The Sheltered Housing Network Supporting All Involved in The Provision of Sheltered and Supported Housing |
Time to act on out-of-hours cover
Time to act on out-of-hours cover
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Decisions on working time regulations pose
challenge to landlords Time to act on
out-of-hours cover
Written by Chris Smith Social housing
partner at Maclay Murray & Spens solicitors, London Employers providing 24 hour cover or out-of-hours cover
could be seriously out of pocket as the result of a number of recent decisions.
Employees are entitled to specified rest breaks under the Working Time
Regulations 1998 (WTR) and to be paid at least the national minimum wage when
they are 'working' by virtue of the National Minimum Wage Act 1998 (NMW). A
large number of registered social landlords employ care staff, wardens and
others whose contractual arrangements are such that they are required in the
eyes of the law to 'work' for far more hours per week than is legally
permissible. One effect of this is to reduce their hourly rate of pay below that
required to be paid to them by the national minimum wage regulations (with
effect from this month the national minimum wage for adult workers is £4.50 per
hour). It
is now settled law that people on call who are required to be at their home are
'working'
for WTR purposes, even if they are watching TV or asleep. People who are
'working' are entitled to rest breaks unless they are working in circumstances
recognised by WTR as being a special case. Special cases include the provision
of care where continuity of service is essential such as in the reception,
treatment or care provided by hospitals or similar institutions, residential
institutions and prisons. Although most registered social landlords would
usually resist use of the description of their accommodation as being
institutional, in this situation they might wish to argue the opposite! In
the very recent case of Davies and others v London Borough of Harrow, wardens in
elderly people's homes were awarded £1,500 each as compensation for not being
permitted the breaks prescribed by the WTR. In this case the wardens worked from
9 am to 5 pm five days a week but were required to be available on call at their
flats in the elderly people's schemes from 5 pm Monday to 9 am Saturday, save
that they could have seven hours off per week. But for the fact that they also
succeeded in their NMW claims the tribunal would have awarded them £3,500 each.
The period of infringement of the WTR was relatively short, being approximately
six months. The
employees were also 'working' for NMW purposes for all the time when they were
required to be available, i.e. 113 hours per week, thereby meaning that they
should have been paid at least the NMW for all those hours. The wardens were
paid a 'standby allowance' of £7.91 for all of the hours, i.e. £1,58 per day.
The employees succeeded in their claim and the parties are calculating the
compensation payable at the present time. It
appears from the case report that the employees had relatively short service so
the council's exposure is likely to be modest but employers should be aware that
it could be substantial where long service is involved. it is possible to make
changes by agreement with employees although experience has shown that
negotiating the changes can be challenging. NMW
claims can be made in respect of the period from when the minimum wage was
introduced and liability for them passes under transfers covered by TUPE. In
view of the continually increasing exposure, employers who have any concerns
should act now by seeking advice from legal advisers with competence and
experience in this particular area of the law. With
a little planning most, if not all, NMW and WTR problems can be avoided
particularly when employees fear that if their working hours are reduced the
lose out financially in the long term. With the use of pagers or mobile
telephones employees can be given enough freedom to leave their homes/workplaces
so as to avoid WTR claims, as it is important that they are not 'required' to be
at their place or work. NMW
claims can be avoided by negotiating 'unmeasured work agreements' with
employees, whereby the parties agree a realistic number of h when the employee
will really be working and paying the NMW or more for such hours. In the Davies
case it was accepted that each warden was called only on twice a week. In
most cases the employees will no worse off as the introduction of an unmeasured
work agreement is generally part of a repackaging exercise rather than a change
to employees' pay. * Chris Smith is a solicitor who acts for a number of housing associations
and care companies. He can be contacted by e-mail chris.smith@mms.co.uk
This is an article that appeared in ‘Inside Housing
Magazine page 15 on 10th October 2003 |
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