Melanie Butler examines how the outcome of an Appeals Court case could have serious implications for employers of staff who sleep on the premises
Summer school season is upon us, but the rules around staff sleeping-in at work have changed.
The whole of the residential care sector in the UK is awaiting the outcome of an Appeals Court hearing to see if they are going to have to pay HMRC an estimated total of £400 million for not following the new rules.
So, what’s the catastrophic change?
Since an Employment Appeals Tribunal judgement in April 2017, government definitions of working hours have included ‘hours at work and under certain work-related responsibilities even when workers are allowed to sleep’.
If a worker fits this description, they are entitled to £70.47 for each nine-hour night shift if they are aged 25 or older.
For the purposes of National Minimum Wage Regulations (NMWR) the employer is to offset no more than £7 a night for accommodation, so the worker is entitled to £63.47 a night for being on call, even if they are asleep.
This is not EU law. It comes under the NMWR, which are enforced by the HMRC. They don’t seem to care how many working hours a member of staff does but they make it the employers’ responsibility to ensure that they are paid minimum wage for every single one of them. And they can fine employers up to £20,000 per employee if they don’t.
Is the EFL industry aware of this?
We checked out all the summer school jobs ad on Tefl.com for a two-week period in June and downloaded job descriptions for teachers and/or house parents (or similar care staff) for seventeen schools. What we found suggested that the EFL summer schools knew nothing at all about sleep-in pay.
Our purpose in doing the research was not to name and shame schools. We understand that, since schools already pay for board and lodging for their workers, paying them to sleep as might well make many summer schools unviable.
Our purpose was to take a snap-shot of the situation and make clear to schools the main problems they may face.
And there are problems.
Among the seventeen residential schools for which we found data, only three mentioned nights. And none mentioned payment specifically for work at night.
In EFL terms, the staff most likely to be considered to be working while asleep are house parents or similar welfare staff who are primarily responsible for children.
A houseparent required to put children to bed, be on site and on call while they sleep and then wake them up is likely entitled to £516. 78 a week for this work alone, before deduction of £7 a night for accommodation.
The highest figure we found quoted for house parents on duty for these hours is £575 week, before legal deductions. That means that they are being paid just £58.22 for all the other work they are doing during the week.
Not all sleep-in workers are entitled to be paid when they are sleeping. Group leaders are excluded because they are employed by the travel agent.
And for other staff, there is the ‘fish and chips rule’.
The rule comes from the court case Whittlestone v BJP Home Support Ltd. (2013) which states that if the contract allows the worker, while on call at night, to ‘slip out for a late night movie or fish and chips’ without fear of being disciplined, then they need not be paid when they are sleeping.
This is not likely to be the case for schools offering free accommodation in return for ‘full residential support’.
Nor schools requiring teachers to ‘sleep in a room in close proximity to the students and be prepared to respond if there are problems during the night’.
In fact, the problem with most of the job descriptions we examined was that they seemed to imply that every worker had to remain on campus unpaid all night, every night, six days a week.
A job description is not a contract.
So schools need to make sure that their contracts are written so that employees who do not have primary responsibility do not need to be paid while sleeping. The current government advice is that workers without primary responsibilities will not be considered to be working when they sleep if their contract sets out ‘their working time, any period they are permitted to sleep during a night shift’, and allows them to leave the campus during the night without being disciplined.
Of course, all these regulations may be struck down by the Appeals Court any time now. If that happens, then we will let you know.
But if they aren’t, it looks to us from the job descriptions we have seen that many summer schools need to change their business model in case HMRC comes calling.
CASE STUDY: Do your duty on night duties or you may face the taxman.
This example based on an actual job description, highlights many of the problems with the sleep-in regulations.
A job description from a school picked at random says it employs house parents for an average 48-hour week. The remuneration package, including free accommodation, covers a 49-hour week at the top minimum-wage rate, rising to 53 hours for younger workers.
The job includes student supervision duties, a full-day excursion and ten and a half hours of work on Sundays when they have to go to the airport.
Staff are expected to keep a record of their working hours and make a weekly report on any over-time done.
Problem: It is now the legal responsibility of the employer to monitor employees’ hours, and failure to keep proper minimum-wage records is a criminal offence. However, employers can require workers to fill in time sheets, in which case only hours actually claimed are payable. However, HMRC would argue that employers have to pay not only for the hours worked but for the hours that they are required to be on site.
The job description states that staff may be required to work more than 48 hours in some weeks. Time off in lieu is ‘given at later date’.
Problem: Minimum wage for every hour worked must be paid in the pay reference period in which they occur. Overtime done in the week they are paid must be included in that payment. Time off in lieu taken after the pay reference period does not count.
Unusually, but not uniquely, staff are required to do some night duty from 11pm to 2am.
More problems: the sample schedule below shows four night duties. These would be payable for the full eleven-and-a-half hours from lights out.
If night duties are being done more than twice a week, this would change the employee’s legal status to that of a night worker. Night workers are only legally allowed to work 48 hours a week – the night shifts in our schedule already add up to 46 hours.
The final thing to point out is that the schedule is not clear whether the meal duties are not counted as working hours.
The fact that a worker is required to be on the premises of the employer and cannot leave counts as ‘working time’, whether they are doing their core job, supervising, on call or simply playing dominoes with the caretaker.