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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48775
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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An employee is taken on as a personal carer old lady.

Customer Question

An employee is taken on as a personal carer for an old lady. She is resident in the house and eats her meals with the employer. No charge is made for the residential living expenses , food etc. She gets two hours a day, usually during the day, to go out but otherwise is on call. This may mean she is in her own bedroom reading or watching tv, but is around if needed. This arrangement is seven days a week. Employee is paid £75 a day before tax etc. If a special occasion arises, requiring say a complete day off this is arranged on an informal basis. 20 Days holiday plus statutory holidays or double pay in lieu.
How to express the working hours and rate to avoid any possible conflict with minimum wage requirements?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello how long have they worked there for?
Customer: replied 2 years ago.
THis is a new contract of employment being drawn up from someone who has been working for an agency and is now being taken on as a direct employee. So what is wanted are the words that go in the heading: 'Hours of work' and 'Rate of pay'
The agency uses a zero hours contract and expresses pay as 24 hours at 3.13 to give £75 a day. I am not happy with this because it is an hourly rate below minimum wage and this will get worse over the next few years. What I want is something that expresses a daily rate of £75 for ? hours or availability - remembering the person lives in the house and is called upon throughout the day for care roles : breakfasting, toileting, go to appointment at hospital etc. She gets 2 hours a day 'off ' to go out if she wishes , free of any calls. In between duties she is free to read, write, stay with client and watch tv and chat or whatever around the house. There is a separate cleaner for the house.
Customer: replied 2 years ago.
I did have a word with ACAS and they talked about treating the person as a family member since she lives therein the house full time and shares all the same facilities as client. Eats at same table , washes in same bathroom etc. Has her own bedroom.
Expert:  Ben Jones replied 2 years ago.
Hello sorry i was called into a tribunal earlier. I am still dealing with your question and will get a response out to you by the end of today, i just need to check a few things with the law as well. Thanks for your understanding
Expert:  Ben Jones replied 2 years ago.
Thanks for your patience. Whilst I understand your requirements to amend the wording, what you need to bear in mind is that regardless of what you put in the contract and how you word it, you may still end up with the same situation. This is because the law would consider the working time that she is subject to and the pay that she receives and then it will still work out her average pay and if that is below the NMW, then you will still be acting unlawfully. So it does not really matter what the wording of the contract is, the la only cares about the reality and what she works, whether it is working time and how much she is being paid. You cannot ‘disguise’ the actual position by just having a contract that says something which does not reflect the reality.
However, you can still consider employing her on ‘unmeasured’ hours, something like a zero hours contract but paying her a flat rate.
I will quote some advice from a third party and may direct you to their site where you will find very good and detailed advice on care workers and the ways they could be employed and what hours actually count as working time and should count towards the NMW.
“Determining for what hours she should receive the NMW can become difficult unless you decide to employ her on a ‘daily average hours agreement’, which is an agreement in writing between a worker and an employer which determines the average daily number of hours the worker is likely to spend on their duties – and for these hours the NMW should be paid.
Workers who have entered into a ‘daily hours agreement’ do not have to be paid the minimum wage for each hour worked, but they must be paid the minimum wage, on average, for the time worked in their pay ‘reference’ period. This ‘reference’ period is the period of time a worker’s wage is actually calculated, e.g. on a weekly or monthly basis, but cannot be longer than one calendar month. Alternatively, where a worker has not entered into a ‘daily hours agreement’ but is employed in unmeasured work, their employer must record the hours they work during the pay reference period, and pay them for every hour worked.”
Please note that this area is very complex and you cannot really get a summary in just a few sentences because there are so many options available.
I suggest you take some time to read the following advice and see how it applies to you and you can use it to your benefit:
https://www.crunch.co.uk/blog/contractor-advice/2011/07/26/care-workers-what-are-your-rights-at-work/
I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Expert:  Ben Jones replied 2 years ago.
Hello, I see you have read my response to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? If your query has been dealt with please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. If you need further help please get back to me on here and I will assist as best as I can. Thank you.
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
Since I have your response and have read extensively on the subject of 'carers' and the Minimum wage I must say that I really as uncertain as ever as what exactly to do. If someone is living in and available therefore 24 hours a day even when sleeping if called - then there is some notion that they should be paid for 24 hours a day. That would make every live in carer impossibly expensive and create widespread social problems as a result. There seems no good way to deal with the problem as I se it- and the nearest I have consoled myself with is the 'agreed average hours ' route- and worry about an argument if there is an argument about sleeping time. Even then this doesn't feel comfortable- but is the best I can do.
Thank you for the information you sent me. There are lots of words out there but no real sensible solutions that I can see. Also- accommodation and food is valued at £5 a day. I would like to see where in London you can live for that amount of money, even on the streets! The whole Government guidance thing is an unrealistic mess.
Expert:  Ben Jones replied 2 years ago.
Unfortunately this area of law is still somewhat of a grey area and full of a mixture of laws and uncertainties so I am not surprised you are finding a minefield – lawyers do at the best of times so a layman would be even more perplexed. The truth is there is no straight answer, often employers act close to the limits, bend the rules (unintentionally) or adopt a combination of solutions. Often it is a matter of the employees not challenging it that allows this to continue
Customer: replied 2 years ago.
Yes- that's about where I have arrived to. I am going to state a monthly salary and an agreed number (11) of working hours a day- although I am not even sure if I should do that or maybe just have the argument if it should ever arise. 11 hours at a Minimum wage of £7.15 comes out to about what we are planning to pay. The rest is time off or sleeping time. My fear is that because the person is resident, sleeping time is counted as working time and that would be very expensive indeed. So I could just state a salary and leave it at that or put in an agreed number of hours which is what some of the literature woud suggest..I don't suppose you could offer adice as to which way to go..?
Expert:  Ben Jones replied 2 years ago.
One thing that could work in your favour is that if the worker is on call (that is, "required to be available for the purposes of working" but not actually working) at or near a place of work, and is provided with suitable facilities for sleeping, time during the hours they are permitted to use those facilities for the purpose of sleeping shall be treated as working time but only when the worker is "awake for the purposes of working". So time when the worker is asleep, or is awake for a purpose other than work, is therefore not treated as work. So you could construct a contract to reflect the time they would actually be working and you know they will and then generally cover any additional time as overtime perhaps, so say that if they are required to work when called from rest or sleep that it will just be paid at their normal rate.
Customer: replied 2 years ago.
Oh that's useful to know that when they are there (the carer is full time resident in the house and has no other home) she may be there and awake but not necessarily for the purpose of work. In fact she often disappears to her room to privately read or write but is there if needed. Same at night. Hopefully we never have a court dispute and will settle any arguments if they ever arise.Thank you
Expert:  Ben Jones replied 2 years ago.
You are welcome, all the best
Customer: replied 2 years ago.
What do think to this. 11 hours at £7.15 an hour (next years minimum wage) is £78.65/day and the rate of pay will be slightly above that."The employee accepts that by agreeing to the terms of this contract the provisions of the Working Time Regulations 1998 do not apply. Should the employee wish to terminate this opt out agreement then one month’s notice in writing to the employer is required. A separate notice to this effect is attached.Owing to the nature of the employment and the fact that you are resident in the house, actual working hours vary from day to day. If actual working hours in any month average over 11 hours a day over any one month period this should be brought to the attention of the employer. Working hours exclude sleeping and free time i.e. not working time.To cover free time requirements the employee may arrange for additional or substitute care assistance where required after discussion with the Line Management."
Expert:  Ben Jones replied 2 years ago.
Ah don't say that the provisions of the WTR do not apply - you can't do that - what are you trying to exclude? Do you mean you want them to opt out of the 48 hour week?
Customer: replied 2 years ago.
What do you think to this:That's interesting. I lifted that clause from the pro forma I am using . Yes. There is a separate 48hr Opt Out agreement to the contract. I will change that to simply refer to the attached agreement relative to the 48 Hour Opt Out.
Customer: replied 2 years ago.
"The Working Time Regulations 1998 apply to the Employee. As the Employee wishes to work and the Employer wishes to provide work for longer than 48 hours on average per 7 days the parties have entered into an opt out agreement.Owing to the nature of the employment and the fact that you are resident in the house, actual working hours vary from day to day. If actual working hours in any month average over 11 hours a day over any one month period this should be brought to the attention of the employer. Working hours exclude sleeping and free time i.e. not working time.To cover free time requirements the employee may arrange for additional or substitute care assistance where required after discussion with the Line Management.
Expert:  Ben Jones replied 2 years ago.
Yes don't try and say that you want them to opt out of the WTR as a whole - that won't work. you need to be specific that you want them to opt out of the maximum 48 hiur working week under the WTR, not the whole of the WTR. The rest is fine
Customer: replied 2 years ago.
Hopefully this is it and works. Your final comment please. The idea is to pre-empt any claims that we breach the Minimum pay rules- which I do not intend to do. Her present employer, an agency, has a zero hours contract and enters 24 hours at £3.12.an hour on her payslip - which I think is a foolish risk and one I don't want to take. Hence the attempt to narrow down what is work and what is other time."The Working Time Regulations 1998 apply to the Employee. As the Employee wishes to work and the Employer wishes to provide work for longer than 48 hours on average per 7 days the parties have entered into an agreement to opt out of the 48 hours working limit provisions.Owing to the nature of the employment you are resident in the house and share its facilities both during working and non-working time. Working hours is agreed to exclude sleeping and free time i.e. time not working on the Employer needs. Actual working hours vary from day to day. If actual working hours in any month average over eleven hours a day over any one month period this must be brought to the attention of the employer.To cover free time requirements the employee may arrange for additional or substitute care assistance where required. Normally this will be done by agreed substitute carers and after agreement with the Line Management."
Expert:  Ben Jones replied 2 years ago.
Yes agreed it looks fine