Legal View: Staying In The Green When It Comes To Employees

By Gareth Matthews, employment law partner at MLP Law (www.mlplaw.co.uk)

There are many legal considerations for care home managers and operators – not least those regarding the safe and lawful employment of their staff. Care employment, particularly in residential nursing care, can present a complex issue due to the nature of the work. Shift patterns, absences and meeting the duty of care can all make managing employees tricky.

So, what do residential nursing home managers need to be aware of in order to stay in the green?

National Minimum Wage
Like all employees, all care workers are entitled to be paid at least the national minimum wage for all the hours they work. In 2021, a Supreme Court decision rules that carers who work ‘sleep in’ shifts are not entitled to be paid for the time they are asleep – only the hours they are awake and working requires payment by law.

In a similar vein, time spent training or travelling between sites counts as working hours – whereas commuting does not.
There are some scenarios where employers inadvertently pay staff less than minimum wage. An example would be if the employee is required to buy their own uniform and this is deducted from their pay.

It’s important for care home managers to ensure that they place proper emphasis on national minimum wage compliance, given that there is often little opportunity to pay staff over this rate.

Working Time Regulations
Every individual is subject to restrictions on their working time hours and breaching these can have serious consequences for employers. The rules include a maximum 48-hour working week (although staff can choose to opt out of this, which should be agreed in writing), a minimum 11 hours’ rest in each 24 hour period, at least one uninterrupted period of 24 hours in each seven day period, and a 20 minute unpaid rest break when working for six hours or more.

In special circumstances, you can require staff to work above this level, but you must give the equivalent time off as compensatory rest to make up for it.

Time off for dependents
Carers have a right to unpaid time off during working hours to care for, or arrange care for, their dependents. This is generally a short-term measure, designed to enable carers to deal with an emergency or unexpected disruption, rather than a long-term solution to their responsibilities outside of work.

Other rights exist where more long-term solutions are required, such as parental leave for up to 18 weeks (unpaid) or the right to request flexible working arrangements.

Sickness, including covid and isolation
Staff who are unable to work due to illness or injury are entitled to statutory sick pay from the fourth day of any absence, for a maximum of 28 weeks. Employers are entitled to request evidence (usually a doctor’s ‘fit note’) for absences of more than seven days.
Like many other employees, carers are not generally entitled to paid time off to attend medical appointments – with the exception of antenatal appointments. Temporary rules covering Covid absences have now been removed, meaning carers are no longer required to self-isolate if they have Covid-19.

Difficulties can arise where employees attend work despite being unwell with Covid-19 – or any other illness – for example if they do not want to lose earnings. If an employee is sent home from work by their employer, after declaring themselves to be ready and able to work, they may be entitled to full pay.

Health and safety
Employers must ensure the health and safety of their employees. This should typically include things such as having an effective health and safety policy, managing risk assessments and providing appropriate training.

There are lots of opportunities for risk within most care and nursing homes! Risk of injury may arise out of many types of tasks, including manual handling, use of chemicals and cleaning products, exposure to contagious illness and so on. You should identify and assess each risk, and put a plan to mitigate them in place.

While running a care or nursing home comes with its own specific challenges, the law applies in the same way as it does for any other business. if you are unsure of your obligations, or want to discuss your employment law needs, the best thing to do is to seek expert advice from an employment lawyer.

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