Carers who sleep over could be entitled to NMW
Hiring your own personal care assistant can be an empowering thing. But for many who do, it is the first experience of becoming an employer. In many ways, the home-based and intimate nature of the work makes the employment relationship - and all the responsibilities and obligations that it entails - even more intense than in the conventional workplace.
One difficult area is how to approach 'sleepovers', when a carer stays the night and is on duty to provide care if necessary.
The first consideration is payment. Given that the carer is not self-employed or a volunteer, and lives elsewhere, he or she is likely to be entitled to the National Minimum Wage and National Living Wage (NMW) for this overnight stay - even if the 'bulk' of the job is during the day.
A recent ruling from the Employment Appeal Tribunal has suggested that if a carer is required to be present through the night, and that there's an agreement between parties that the carer would work in the night if needed, then this period counts as work time and should be paid for accordingly. This is true even if the carer is not physically needed and sleeps all night, because the job itself is to be present, according to the EAT.
Employers should also be aware of the rules around working hours, governed by the Working Time Regulations. For example, if planning shifts, the carer needs to have at least 11 hours' consecutive rest in any 24-hour period, and one 20-minute rest break during work if the working day is longer than six hours.
The normal working hours of night workers are limited to an average of eight hours in any 24-hour period, and they are entitled to receive regular health assessments to make sure they are fit to work at night.
Acas provides detailed information on Employing personal care workers, and gives free advice through Helpline Online. Acas also provides practical training for new employers with courses on Employing People - A Practical Introduction and Contracts and terms and conditions.
Visit the Acas Training and Business Solutions area for more information.