Legal update
Employment law matters in the care industry
Natasha Smith, a senior associate at CooperBurnett LLP, provides an update on changes in employment law
The beginning of any new year is the perfect time for employers to reflect on any workforce issues that may have arisen over the previous year, to review where their organisation currently stands, and to assess where they would like it to be in the coming year.
Unlike many other areas in the legal
world, employment law changes rapidly, so it is important for employers to keep on top of the latest developments in legislation and decisions that are being made in the courts through what is known as ‘case law’. Traditionally, the key times of the year for changes to be made in employment law are in April and October. That said, this does not usually stop governments from making changes at other times across the year, especially in a year such as this, when an election is looming and politicians are keen to win votes. The decisions that were made in 2023 and the resulting changes that are coming into effect in 2024 are no exception to this, and the impact that such changes to employment law can have on those working within the care industry are potentially significant.
Increase to the National Minimum Wage It is generally well known and accepted that all workers must be paid at least the National Minimum Wage (NMW) for hours worked. The rates change annually and will vary depending on the age of the individuals who are working for an organisation. Those working in the care industry are often engaged by organisations that calculate their pay offering based on NMW rates, as set down by the NMW legislation. It is also common for care workers to work variable hours, depending on fluctuating
April 2024
www.thecarehomeenvironment.com
organisational need. As such, care home employers shall need to be aware of how average working hours are calculated and the reference periods that apply to such calculations to ensure the NMW rates are being met at all times.
As from 1 April 2024, the NMW will see the greatest ever increase to hourly pay rates and it will widen the scope of staff that are included in the NMW by lowering the age thresholds, therefore applying to a greater number of eligible staff. As a result, the impact of this year’s NMW increase across care organisations simply cannot be underestimated. Many care home employers are having to review their pay rates for roles performed across the whole organisation to ensure that all staff are being paid fairly and proportionately for their work, in line with current legal minimums. The new hourly rates from 1 April 2024 are as follows: n £11.44 per hour for workers aged 21 years
Employment law changes rapidly, so it is important for employers to keep on top of the latest developments
and over (it was £10.42 per hour – a 9.8 per cent increase).
n £8.60 per hour for workers aged 18-20 years (it was £7.49 per hour – a 14.8 per cent increase).
n £6.40 per hour for workers aged 16-17 years and apprentices (it was £5.28 per hour – a 21.2 per cent increase).
Crucially, the non-payment of the NMW can lead to fines, penalties, and, of course, reputational damage to a business. Non- compliance with the NMW can occur in a care home environment where employers may be caught out by the hours worked and perhaps do not ensure that staff who provide ‘sleep in’ shifts are paid correctly for their time. Over the years, various cases involving care home staff have gone through the Employment Tribunals (and subsequently been referred to higher courts of authority) to determine issues such as where staff are required to sleep at the care home to cover the night shift duty and are not paid for time spent sleeping, only the time that is spent awake.
This scenario can have a direct impact
on employers incorrectly calculating average pay for working hours and can lead to them inadvertently falling foul of
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