We appreciate that the care sector has its own particular challenges. Importantly, the last 18 months have put HR professionals in all sectors under huge pressure but in particular the care sector has seen many changes in regulations and safety requirements.
We are therefore setting down 5 key tips for HR professionals in the care sector to focus on over the coming year.
It is a legal requirement to have a written statement of terms and the Employment Rights Act 1996 sets down what needs to be included. Importantly on 6 April 2020 the Good Work Plan Review changed the requirements in a contract of employment. Therefore your templates could be out of date unless they have been reviewed in the last 18 months. This doesn’t apply to employees that were engaged before 6 April 2020 but for anyone who has been engaged since, a contract of employment is needed on their first day of employment and it needs to be compliant with the new requirements.
Please see our blog on the Good Work Plan changes and let us know if you need assistance with a review.
There was much confusion about the position with case law falling in both directions. However, the Mencap -v- Tomlinson-Blake case was finally decided by the Supreme Court in March 2021. It concluded that in general employees who were asleep were not working for the purposes of the National Minimum Wage Regulations.
Please see our blog on the decision of the Mencap -v- Tomlinson-Blake case.
Many care homes took decisions around shift work etc in a defensive manner before this case, anticipating it may be decided in employees’ favour. We saw many care homes put in 24 hour rolling waking shifts to avoid any risk in relation to national minimum wage for sleep in shifts. Now maybe the time to review these working patterns and reinstate sleep in shifts, if more beneficial for the business.
The Working Time Regulations provide that there needs to be a 20 minute break if your daily working hours are more than 6 hours long. The Regulations also provide a minimum daily rest period of 11 hours uninterrupted rest between finishing your job and starting the next day and finally a weekly rest period of 24 hours uninterrupted rest within a 7 day period or alternatively a fortnightly rest period of 48 hours consecutively if there has been a 14 day period.
In particular, given the disruption over the last 18 months, it is sensible to review the rest period and break periods that are being undertaken. Consider whether shift patterns are sufficient and cover has allowed rest periods to take place. If you are struggling to maintain rest periods, you should explore some of the exceptions under the Working Time Regulations and see if they are appropriate for your circumstances.
However, by not considering these, you are putting yourself in a position where an employee could make a complaint in an Employment Tribunal.
Generally you are not allowed to roll forward holiday from one year to another other than any contractual amount offered about the legal minimum entitlement of 28 days including bank holidays. However, regulations in the beginning of 2020 stated that actually if an employee was prevented because of the Covid-19 pandemic from taking holiday then they would be allowed to roll this forward and they would be allowed to roll 10 days forward. This covered two years so a roll forward from holiday year 2020 to 2021 and from holiday year 2021 to 2022. Therefore, you could have some employees with significant holiday building up over the coming years. This holiday tsunami is going to end at the end of 2022 and therefore if you aren’t planning for a large amount of holiday to be taken next year, you should start thinking about this now. Albeit we have 4 months before the turn of the year, it would be sensible to start planning how much holiday is likely to be taken with your staff and whether you want to tell staff when to take it. It may be that you want to tell them nominate dates when you feel that you can get suitable cover for the staff. Equally, it may be that you are trying to spread this out over the course of the year.
We would strongly suggest you analyse this as soon as possible.
The first point to note that there is absolutely no requirement to pay an employee when they are commuting from their home to their place of work. However, this position is slightly less clear when they are travelling on work time. In particular, if you are a carer providing domiciliary care in a patient’s home then it needs to be very clear in your contractual documentation how the different travel periods will be assessed. It is not unlawful for a care worker to have their travel time between appointments unpaid. However, this is acceptable so long as the lack of paid travel time does not reduce the pay below national minimum wage. This will naturally be a concern for those who are lower pay rates and that have a risk of being underpaid due to travel expenses. Again, it is a good time to start reviewing these issues now and undertaking an audit to consider if you are falling foul at all of national minimum wage rates.
If you would like further information on any of these areas, please do not hesitate to contact one of the Employment team.