Safeguarding Employees Rights Within Care

By Toby Pochron, Employment Director at Freeths (www.freeths.co.uk)

In this article we briefly explore the areas of Health and Safety, Working Time Regulations 1998 and employee’s rights to take time off to provide care for a family member.

Health and Safety
Health and Safety at Work Act 1974 (HSW) is the key regulation policing health and safety. The Act enforces the employer’s health and safety obligations ‘so far as reasonably practicable’. This means that employers must balance real risks against control of risk in terms of cost and trouble. Employees’ duties are followed by a similar principle which is to take reasonable care to protect their own safety and any other person who may be affected.

The Act does not provide employers with a step-by-step guidance on how to effectively manage health and safety but instead gives the employer discretion. Whilst there are no approaches set in stone, the below is a good starting point:
• Risk Identification: This can be achieved by simply walking around the workplace and identifying what could reasonably cause harm. Additionally, communicating and asking staff members.
• Risk Assessment: The next step is to carry out a risk assessment of the risks identified. This is a process of identifying the potential harm a risk can cause and the likelihood of it.
• Controls: Once the risk has been assessed, it is the employer’s duty to implement measures to minimise the risks.
• Training: The final step in this process is to raise awareness. The purpose of training is to raise awareness of the risks identified and teaching employees how they can overcome these risks and effectively manage health and safety at work.

Working Time Regulations
The Working Time Regulations 1998 governs employees’ patterns of work, holidays, rest period and working time. Whilst it covers a large proportion of rules and regulations in the care sector, the following areas are considered to be of importance:
• Rest: Employees must receive at least 20 minutes of break when working more than six hours a day, 11 hours of uninterrupted rest per day and 24 hours of uninterrupted rest per week.
• Working time: Employers must ensure that the average working time does not exceed 48 hours per week (17-week reference period). Employees are able to opt out of the 48-hour working week but employers must ensure adequate rest and breaks are given.
• Night workers: Night-time is usually defined as period of work between 11pm and 6 am. If an employee regularly works at least three hours during night-time, they will be considered a night worker. A night worker should not work for more than 8 hours in each 24-hour period.
• Holidays: The WTR entitles employees (whether full time or part time) to a minimum of 5.6 weeks holiday. The employer ensure the employees receives the right amount of holiday leave and pay depending on their contract and hours worked. A recent Supreme Court case ruled that the common 12.07% method of calculating holiday accrual is no longer legal. This can cause problems if the employee is working irregular hours and it is recommended to seek legal advice if your business uses this calculation method.

Time off to provide care
An employee has a statutory right to take time off from work to help someone who depends on them regardless of their length of service. The law does not specify how long much time can be taken off or how many occasions but it states that the time off should be ‘reasonable’. Employers should be flexible in this regard and consider each employee’s situation on a case-by-case basis.
The following persons are considered a ‘dependant’:
• Spouse, partner or civil partner
• Parent
• Child
• A household member (not tenant or lodgers)
• A person who depends on them for help in the event of an emergency such as an old neighbour

Employers are not obliged to pay for time off but may chose to do so and implement it as a policy. Employers must also be aware of overlapping policies for this type of leave. For example, if your company has implemented a compassionate leave policy, this may overlap with the statutory right to take time off for family and dependants.

Conclusion
This article is merely the tip of the iceberg; nursing homes are bound by far more rules and regulations. The purpose of this article is to guide you in the right direction if you are new in the sector but for those who are experienced, we hope this has served as a refresher.