As we mark Professional Care Workers’ Week 2023, it is an opportune time to celebrate care workers who are the backbone of our social care system and to review the rights which protect them. These individuals, numbering 1.54 million, play an indispensable role in our communities and the demand for their services is only growing.
This article recaps on the rights of care workers and considers the future of this sector, including cross-skilling and collaborative efforts.
Rights of Care Workers
Care workers can find themselves engaged under various working arrangements, including zero-hour contracts, bank staff roles, agency work, and permanent employment (if they are employees). As such, it can be difficult to identify a care worker’s employment status and accompanying rights.
Nevertheless, care workers are entitled, as a minimum, to statutory rights, which include the National Minimum Wage, Rest Breaks, Days Off, Paid Annual Leave, and Protection from Discrimination.
Below we focus on National Minimum Wage and Holiday / Break Entitlement –areas which can be confusing for organisations and workers alike.
National Minimum Wage
All care workers are entitled to the National Minimum Wage (NMW). The unique nature of care work which can involve travel between appointments or sleeping over in a patient’s home can make it difficult for employers to calculate a care workers pay and to make sure they are not paying below the NMW.
Employers must ensure they consider a care workers travel time when calculating pay. Care workers should be paid for their travel time between appointments and for any expenses incurred such as petrol if failure to do so would allow their pay to fall below the NMW.
In 2016, it was found that a care home was undertaking the practice of ‘’clipping‘’ (which means that care appointments are scheduled back to back and there is no travel time scheduled between visits. As a result, visits are clipped, or cut short). By not paying the care workers for their travel time, they were essentially being paid less than the National Minimum Wage and this constituted an unlawful deduction of wages.
Case law has also demonstrated that ‘’sleep in workers’’ should be paid the NMW when they are woken up to attend to a patient. A sleep-in worker is someone who is employed to sleep at a patient’s house but may be required to attend to a patient if there is an issue during the night and the patient requires assistance. For the rest of the sleep-in shift, they can be paid a fee which is agreed with the ‘employer’.
Holiday entitlement/Breaks
Calculating holiday entitlement and rest breaks for care workers can be a challenging task, primarily due to the nature of their employment and varying work patterns. However, under the Working Time Regulations, all care workers are entitled to the following rights:
Holiday entitlement: the statutory holiday entitlement is 28 days (5.6 weeks) for full-time workers (which can be pro-rata’d for those under part-time agreements) and can include bank holidays. However, contractual terms may offer additional paid holiday allowance on top of the statutory leave.
With regard to part-year and irregular hours workers, the Department of Business, Energy and Industrial Strategy (BEIS) launched a public consultation (at the beginning of this year) on changing the method used to calculate the holiday entitlement. The consultation seeks to address the problems arising from the Supreme Court’s July 2022 decision(Harpur Trust -v- Brazel [2022] UKSC 21) that workers who are on permanent contracts, but who are only required to work for part of the year (eg workers on term-time-only or zero-hours contracts), are entitled to a minimum of 5.6 weeks’ holiday a year, and that their annual leave entitlement cannot be pro-rated on account of the weeks in the year when they are not required to work. The outcome is eagerly awaited.
Daily Rest Period: Care workers, like all workers and employees, have the right to a minimum of 11 hours of uninterrupted rest between concluding their duties one day and commencing work the next.
Weekly Rest Period: Care workers are entitled to a weekly rest period of 24 hours of uninterrupted rest within each seven-day period. However, employers can opt for a Fortnightly Rest Period of 48 consecutive hours within a 14-day timeframe instead. It’s worth noting that the weekly rest period should not overlap with any part of the daily rest period to safeguard the worker’s well-being.
Rest Breaks: The law acknowledges that the nature of care work requires the continuity of service, making it challenging to adhere to the statutory 20-minute break every six hours. In such instances, care workers should receive compensatory rest whenever feasible. Ideally, the rest break should be provided as soon as possible after the interruption, however, it can be banked and accounted for at a later date as long as it is reasonable to do so.
The future of care workers
Despite the above rights / entitlements for care workers, it is regarded as a largely underfunded sector which has likely contributed to the, highly publicised, shortage of care workers. This, in turn, has led to an increased reliance on overseas workers but there can be severe penalties for engaging individuals who do not have the right to work; for example, a care recruitment agency was recently fined £10,000 for employing illegal workers.
The care worker shortage has also placed added pressure on the health sector, leading to NHS backlogs and delayed patient discharges. Consequently, there is a growing appetite for collaboration between the health and social care sectors. The NHS has outlined ambitious plans to break down traditional barriers between teams and organisations to better support people with long-term health conditions. The COVID-19 pandemic accelerated collaborative efforts, with health workers contributing to care homes and shared workforce initiatives.
Cross-skilling between health and social care sectors is seen as a promising solution to improve services and address growing demands. However, organisations must ensure there is adequate training and support for individuals operating in both domains and consider risks arising from possible ‘burn out’.
Overall, whilst there are valid concerns about the vulnerability of the care sector, it is crucial to recognise, celebrate and appreciate the remarkable individuals who work relentlessly to support the most vulnerable members of our society, not just this week but year round!
For further information and support, get in touch with our Independent health or Social care teams.
For further information, please contact:
Lee-Anne Crossman, Hill Dickinson
lee-anne.crossman@hilldickinson.com
