sleepover shifts

[jakedogface]

Hello everyone. Im looking for some advice regarding my current job. I am a carer and work with elderly people with disabilities. I started work 2 months ago and I am still on probabtion period. I have a zero hours contract, paid hourly at minimum wage and I am expected to do sleeover shifts at the home I work in, which has 3-4 clients. I accepted the job before knowing the shift pattern and was surprised to find I am expected to do 24hour shifts, 12 of which paid at minimum wage and with the other 12 (9pm to 9am) counting as a sleep-in. I am paid 20 pounds for this "sleep-over".

Firstly I want to know opinions on whether they are allowed to count 12 hours as a sleep-in. The most shocking here is I actually have duties during the sleep-in! Medication is written down to be administered at 10 pm and some residents are up at 7 waiting to be dressed.

I have only been with this agency for a short while, but feel cheated because I was told by my manager (and its in the contract) that any hours worked within this period would be paid on top of sleepover rate, but when I wrote them on my time sheet I was told the contract is only talking about medical emergencies, fires, floods etc. It doesn't. I brought this up a couple of times more but was advised by a "concerned" colleague that I would have reprisals if I insisted too much..

I am really upset over all this and feel exploited. I declined other job offers and now face another couple of months of job hunting with no income if I leave. I am mostly angry that these people appear to work with impunity and I feel worthless as a worker.

 

In your opinion, what is the best thing to do? I have started applying for other jobs but the atmosphere at work is now so poor I may end up having to leave sooner.

 

Sorry for the rant and thank you for your time and help

[honeybee13]

Hello and welcome to CAG.

 

I think anyone who works in the care system does a great job and should be rewarded above minimum wage level, but that's a problem I can't fix even though I would like to.

 

It's the weekend so people may not be along straight away, but I hope they'll be here soon with advice for you.

 

My best, HB

[renegadeimp]

it sounds like its a shady care company. Possibly one of the many 'popup' companies that make out theyve been around for ages, but really charge the elderly a fortune, and give you a tiny amount of the money.

[Sparks_]

I worked for the NHS some years ago and had to do 'sleep overs' in a respite care home and I was treated the same, sleep over allowance at a set rate with no extra no matter how many times you were up in the night, then expected to do an 8 or 12 hour shift afterwards as well!

[Sidewinder]

What can be done all depends on how resilient you are, and how much of a fuss you are willing to make.

 

There is now far more clear guidance to employers regarding the obligations imposed by the National Minimum Wage and much of the focus is being turned on the care sector.

 

The recent case of Whittlestone v BJP Home Support Limited saw exactly the circumstances you describe, and in that case the Judge, and later the Employment Appeals Tribunal rule that the employee was entitled to receive the NMW for all hours that she was required to be at a Care Home, even where she was permitted to sleep between duties - where a failure to be on the premises would result in disciplinary action, then the employee must be classed as present at work and must be paid at least the NMW for those hours.

 

I would consider (which is increasingly supported by case law) that if there is a requirement to be on the premises for matters which might arise overnight, and if a failure to be present and available to attend to those matters would result in disciplinary action, then this time must be classed as 'time work' and should therefore be paid at a rate of at least the National minimum wage. You would be entitled to challenge the employer on that point under the National Minimum Wage Act 1998. Naturally this would not be popular as it would potentially be very costly for the employer, not only in terms of any claims by yourself for previously underpaid shifts, but it would also apply to others employed in similar positions. The fact that you are considering leaving might help to make up your mind. I would certainly start gathering as much evidence as possible though - including the 'reprisals' that you mention. You would also have a degree of protection from such reprisals - suffering a detriment for asserting a legal right (to be paid the NMW) is unlawful, and could increase the problem for the employer in any later ET claim.

[goodatresearch]

Sidewinders advise is spot on. As a former trained nurse I am really annoyed how care workers are treated. My husband joined the NHS a couple of weeks ago and I'm shocked about the jobs he's expected to do for such low pay and he not on minimum wage. Some of his duties are the ones trained staff used to do. Prior to the NHS he worked for a private care agency and they treated him very badly and was expected to be on call 24 hours a day without any on call pay. Its time this sort of abuse is stopped.

[jakedogface]

Thank you very much for your help. I think i will give up on trying to fix my current employment and go back to job hunting. With regards to following an ET claim, I have kept copies of all staff rotas and pay slips. Do you think I would need any more evidence to pursue this claim? They wouldnt be able to deny it because the care plans do highlight the times the clients need care.

Also, do you think I also have grounds for a breach of contract claim? I am worried zero hours and probation will invalidate it some how.

Thanks to everyone I feel much better

[Sidewinder]

The zero hours is not a barrier as you are talking about being underpaid for actual time worked, similarly the probation is not a factor in this unless there was a qualifying clause which entitled specific payments subject to not being on probation.

 

Whilst the more usual route is for an Employment Tribunal claim for Unlawful Deduction from Wages contrary to Section 13 of the Employment Rights Act 1996, for the reason that the employer failed to make payments in accordance with Section 2 of the National Minimum Wage Act 1998, it could equally be actionable as a breach of contract claim at the County Court - this is happening more often now since the introduction of fees for ET claims.