Legal update
NMW requirements. However, each case will depend on the particular facts of the situation, the contractual documentation that is in place, and what happens in practice; therefore, specific legal advice should be obtained to ensure NMW compliance.
Working Time
There are a number of regulations in place to protect the rights of workers when it comes to ‘working time’, most of which are covered under the Working Time Regulations 1998. For example:
1. There is a cap of an average of 48 hours per week which a worker can be required by their employer to work. They can choose to work more hours by signing an ‘opt out’ of this maximum, usually contained in an employment contract but it may also be documented separately.
2. For night workers, an average of 8 hours can be worked in each 24-hour period.
3. Night workers have the right to receive free health assessments from a qualified health professional.
4. All workers have the right to receive 11 hours of consecutive ‘rest’ per day.
5. All workers have the right to rest breaks if the working day is 6 hours or more.
6. All workers have the right to receive 5.6 weeks’ paid leave per year.
Night work is unlikely to be avoided when working in the care industry, but as an employer, there are additional health and safety obligations (such as offering a free health assessment) to ensure that workers are fit to work overnight.
Calculation of holiday pay for atypical workers Following the controversial case of Harpur Trust v Brazel in 2023, which saw some
Providers must operate robust recruitment procedures, including undertaking any relevant checks
major concerns being raised by a range of businesses who engage staff working irregular hours i.e. on an ‘atypical’ basis, it has now been confirmed that, as from 1 April 2024, holiday pay can be calculated at a rate of 12.07 per cent for irregular and part year workers.
This simple method of calculation of
holiday pay should be extremely beneficial to all employers, but particularly care home owners, who will typically make variable payments, including overtime to staff, and engage bank workers as and when required. In addition, the previously outlawed
practice of ‘rolled up’ holiday pay will also become lawful as a potential option for employers to use from 1 April 2024. This means employers do not need to ensure in all cases that staff take their holiday entitlement, as long as they receive
appropriate payment for it. This approach provides far more flexibility for both employers as well as staff, who may prefer to receive a proportion of their annual leave entitlement financially, rather than by actually taking the time off. It does, however, still need to be balanced with employers ensuring that they are meeting the various requirements under the Working Time Regulations (WTR), as set out above. The rationale behind the WTR is designed to ensure that staff receive adequate ‘rest’ periods away from work. In practice, it would not necessarily be appropriate for staff to never take any annual leave. Periods of annual leave will always be beneficial, as they allow staff the time to recuperate and return to work refreshed and ready to deliver their duties as required, as well as ensuring that employers are demonstrating that they are taking responsibility for the overall wellbeing of their staff.
Right to work checks and sponsored visas A right to work check determines whether a job applicant has the legal right and permission to work in the UK. Right to work checks should be carried out on all prospective staff, as well as existing members of staff, in order to avoid allegations of discriminatory treatment. By undergoing the appropriate checks to
demonstrate the steps that have been taken to try and prevent illegal working in the UK, employers will have a ‘statutory excuse’ i.e. a defence against a civil penalty being issued.
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www.thecarehomeenvironment.com April 2024
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