Many disabled and older people need care and support during the night. Often it might be to ensure there is someone in the property should the person need help during the night, turning from one position to another for example. If this is just once or twice, and if the PA is able to get some sleep during their shift, then this is generally known as a “sleeping night”. Traditionally this has been paid at a flat rate; anything from £30 upwards for an 8 to 10 hour shift. If a PA is expected to remain awake and alert, i.e. a waking night, they have usually been paid similar to the daytime hourly rate.
The issue of whether or not night shift workers should be paid the national minimum wage (NMW) came to light recently when HMRC told the national charity MIND that they must pay their night-time support workers NMW backdated for 6 years. Although the government have agreed to temporarily waive these fines, it shows how important it is for employers to make sure they are paying their PAs/carers the right rate.
This bulletin highlights key information from the government’s website, and relevant employment support organisations.
What is a nightshift?
The government definition is:
- Staff who regularly work at least 3 hours during the night period i.e. between 11 PM and 6 AM, unless the worker and employer agree a different night period.
- The night period must be 7 hours long and include midnight to 5 AM. It must be agreed in writing (usually in the contract of employment).
- Night workers must not work more than an average of 8 hours in a 24 hour period. The average is usually calculated over 17 weeks, but it can be over a longer period if the worker and employer agree. Regular overtime is included in the average, but not occasional overtime.
- Workers can’t opt out of the limit. They are also entitled to regular health assessments to check there are no health and safety risks to the night work.
- Some carers/PAs may be exempt from these work limits under certain circumstances but seek advice.
Must night workers be paid the national minimum wage?
The .Gov website is clear that night workers must be paid the minimum wage, even for a “sleep shift” because the worker is:
- On call
- At their place of work
There has been a grey area around what is considered a “sleeping night shift”. Recent case law from employment tribunal’s says employers should apply a “fish and chips” test i.e. would the PA be able to pop out for some fish and chips/go to the cinema etc? If the answer is no, then it is a nightshift for which they must be paid the national minimum wage.
ACAS points to a recent employment tribunal appeal:
“If a carer is required to be present through the night, and there is 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.”
If you believe you are not being paid the correct wage you need to speak to your employer and get advice. If their care is funded by the Council or the CCG they may need to contact them to ensure there is sufficient funding within their care package to enable them to meet their employer obligations (under the Care Act).