Should carers working a sleeping night shift be paid minimum wage?

There has been some controversy about whether carers that may well sleep during their whole shift should be paid in line with the national minimum wage. On the one hand, many employers think that doing so would be unfair on care staff that receive the same wage for often gruelling work carried out during waking hours. Additionally, many care providers, including Local Authorities, have said that they simply could not tolerate paying such rates without risking insolvency. On the other hand, even though the carer may be able to sleep during their shift, the time is not free time; they must be in attendance the whole time, and there is a very significant chance that they will be woken on a number of occasions.

It is the view of the government that because the worker is required to be in attendance during the whole shift, that the whole shift should qualify for the minimum wage. This is set out in ‘Calculating the minimum wage’ guidance by Department for Business, Energy & Industrial Strategy. However, in response to concerns raised by care providers, HMRC have today confirmed that they will not apply enforcement of the above retrospectively, nor until 2 October 2017. The aim in this brief respite is to allow employers and care providers to ensure that appropriate preparations have been made ahead of 2 October 2017, at which point the minimum wage will be enforced.

Our deputyship team are experts in employing care staff and dealing with issues such as the above. Please contact Holly Mieville-Hawkins on 03303 116 982 / holly.mieville-hawkins@enablelaw.com for further information.