Care Homes – Employment law quarterly update
Capsticks’ team of employment specialists are delighted to provide you with the first of our quarterly employment law updates which includes recent cases and laws relevant to the sector. We trust you will find this update useful.
The practice of sleep-ins is common in Care Homes and it is, therefore, vital that employers have a clear understanding of whether this time is ‘time work’, under the National Minimum Wage Regulations 2015, in order to comply with their legal obligations.
Focus Care Agency V Roberts 
The Court of Appeal has recently heard an appeal regarding three conjoined cases known by the leading case of Focus Care Agency v Roberts  on sleep-ins and the national minimum wage. We look below at the law as it currently stands. The key issue in these cases is whether during the periods where a worker is permitted to sleep, he or she is nevertheless carrying out time work simply by being present at the workplace.
Factors to consider
The Employment Appeal Tribunal (EAT) found that no single factor can determine whether sleep-ins are ‘time work’ and that it will be necessary for employers to address each case individual on its facts. The EAT set out factors which should be considered:
- The employer’s particular purpose in engaging the worker – where there is a legal obligation for the worker to be on-site, a sleep-in is more likely to be time work as compared to a worker who is simply provided with sleeping accommodation during an on-call period.
- Whether the worker’s activities are restricted by having to be present and at the disposal of the employer – the greater the restriction, the more likely the sleep-in will be time work.
- The degree of responsibility placed on the worker may be relevant – the more responsibility they have, the more likely it is that time asleep will be time work.
Pending Court of Appeal decision
Care Homes should look to these factors when considering sleep-ins but must also bear in mind that the Court of Appeal decision is due shortly and is likely to provide further clarity on this complex area.
Care Homes must also be aware of the difference between the treatment of sleep-ins under the National Minimum Wage Act and Regulations and the Working Time Regulations 1998 (WT Regs) where the time a worker spends during a ‘sleep-in’ (asleep or otherwise) is likely to be classed as ‘working time’. This does not impact on pay, but does have a bearing on rest periods and the number of hours an employee works per week.
We are monitoring this outcome closely so as to provide up-to-the minute advice to clients.
General Data Protection Regulation (GDPR)
Impact of GDPR on staff’s personal data
On 25 May 2018, the General Data Protection Regulation (GDPR) will come into force. Care Homes are no doubt aware of its ramifications for the personal data of residents but it is also important to consider the impact of the GDPR on the personal data of staff.
Importance of privacy notices and compliance
We recommend that Care Homes start a compliance programme immediately so as to ensure that they are prepared for the impact that GDPR will have on workforce practices. Under the current regime, staff tend to be asked for their consent to process their data. Guidance issued by the Information Commissioner’s Office makes clear that in the context of employment, consent as the legal basis for processing personal data should be avoided as it cannot be freely given owing to the unequal bargaining position between employer and employee. Instead, Care Homes will need to consider what other legal basis, of the six set out in the GDPR, will be relevant and should notify employees of this information via a privacy notice.
GDPR made easy - HR Toolkit available
If you would like practical advice in preparing for the GDPR, we have prepared an HR toolkit which outlines steps you need to take and document templates.
Employment status and the Good Work Plan
Cases regarding employment status of self-employed contractors
There have been a number of cases recently brought by those working in the gig economy and a claim against Pimlico Plumbers which have highlighted the importance of carefully considering the employment status of self-employed contractors.
To date, the Tribunals and Courts have found that the individuals have been workers, not self-employed contractors, and are, therefore, entitled to the national minimum wage and annual leave. It should be noted that a case against Pimlico Plumbers has been appealed and we are currently awaiting judgment from the Supreme Court.
Even when the contract has expressly stated that there is no employment relationship between the parties the Tribunals and Courts have looked behind this label at the reality of the relationship.
Factors to consider
Factors which Care Homes should look at in assessing the employment status of self-employed contractors include:
- The work pattern – does the individual work continually without breaks between assignments?
- Is the individual obliged to accept the work which is offered by the Care Home?
- Is the individual obliged to undertake the work personally (rather than being able to provide a substitute)?
- Does the Care Home control the way in which the individual carries out the work?
If the answer to these questions is ‘yes’, an individual is likely to be a worker rather than a self-employed contractor, although it is important to make clear that each case will turn on its facts.
Further government consultation
The Taylor Review of Modern Working Practices addressed the issue of employment status and the lack of clarity which exists at present. In response the Government has announced that it will consult further about whether it should include the definitions of employee and worker status in legislation, and whether the current tests remain relevant in today’s workplace. It will be some time before we see any legislative change, if at all. For the time being, we recommend that Care Homes look to the multi factor test above in determining employment status and considering the rights of the individuals which it engages.
If you would like further advice on any of the issues referred to in this update, please contact Rachel Luddem