By Lee Ashwood, Employment Director at Freeths LLP (www.freeths.co.uk)
With over a decade’s experience of providing employment law advice to care home providers, Lee Ashwood of Freeths sets out his five common employment law pitfalls.
1. National Minimum Wage
Care homes are often inadvertently paying their staff less than the National Minimum Wage and so leaving themselves at risk of claims for compensation by their staff and of being fined.
Whilst the principle of the National Minimum Wage is a simple one – that someone who works for one hour is not paid less than a set amount for that hour’s work – the calculation for determining whether or not someone is paid the National Minimum Wage is complex. The issue is compounded as care homes commonly provide their junior staff with an hourly rate of pay equal to or only a little above the National Minimum Wage.
The calculation requires an understanding of precisely what constitutes time spent working. This can be far more than simply the time someone is rostered on shift and may include, for example, time spent handing over before or after a shift, working while on a sleep-in, or while receiving training. An understanding of what payments a member of staff is required to make that will reduce their pay when calculating whether or not they are paid the National Minimum Wage is also required. Here, payments by staff for their uniforms or training fees, for example, need to be considered.
All care home providers work hard to encourage their staff to make it known when they have identified health and safety issues, have suspicions of neglect or abuse or have any other concerns about the provision of care at their care home.
Having made their concerns known and so ‘blown-the-whistle’, it is widely known that the law states that the staff member may not be subjected to any detrimental treatment as a result of them ‘blowing the whistle’. However, commonly care home providers leave themselves at risk of such a claim as they fail to ensure that the whistle-blower’s colleagues who may well have taken umbrage do not stop treating their colleague fairly and with respect.
3. Foreign languages
As care home workforces become more and more diverse, the likelihood of a language other than English being spoken in a care home increases. Care home providers want the best for their residents in terms of comfort and safety, of course.
Sometimes, this leads to an enforced requirement by a provider that English is spoken at all times by their care home staff or, at least, in certain circumstances. However, the law against discrimination is wide-ranging and bans on speaking a language other than English in the workplace can often fall foul of it.
4. Poor performers
With care homes struggling to recruit and retain staff and care home managers already busy, it is often easier to overlook a poorly performing member of staff than it is to deal with them. Setting aside the potential risk to the health and safety of residents, failing to deal with a poor performer can greatly affect the morale of their colleagues with them possibly leaving, as well leading to allegations of there being a difference in treatment and so discrimination.
However, as employment law does not prevent poor performance being dealt with swiftly and efficiently, care home providers have no reason not to act, having first taken advice.
5. Part-time employees
Time and again, it is overlooked by care home providers that the law states that part-time employees must not be treated less favourably than their full-time colleagues because they are part-time.
This issue comes to light when, for example, care home providers reward their full-time employees with additional time off, the right to refuse overtime or even the opportunity to choose their shifts. In doing so, care home providers put themselves at risk of a successful claim for compensation from a disgruntled part-time member of staff.
Get in touch for advice
As a specialist lawyer for the Care sector, Lee supports individuals as well as businesses of all sizes including many small, medium or well-known organisations. He is an experienced litigator and provides pragmatic advice based on the objectives of his clients.