Should live in workers get paid the national minimum wage while they are sleep at night?

[melvn8]

We are a small care provider providing accommodation and support to persons with special needs. We employ live in support staff with the knowledge that after 10.00 pm to 8.00 am the support staff sleep is not disturbed.

Two of the support staff went to employment tribunal claiming that they worked 24 hours because they were on the premises and we have been forced to settle out of court as it became clear we were going to lose the case due to European ruling and a test case in UK.

Our employment contracts are drawn by specialist employment lawyers and even they failed to realise this hence drawing up flawed contracts for our company.

At the same time we spoke to numerous care agencies which provide live in support workers. They are not paying for 24 hours wage at the national minimum wage and hence could be unknowingly breaking the law.

The same ruling applies to hotel workers, pub workers who do live in. Every single live in worker working in a business in UK stand to win their case for 24 hours pay.

We called and spoke to NMW helpline and ACAS and they could not answer our question.

This ruling could literally cripple our business as we are faced with claims for back pay from other staff.

[boobesque]

surely you are giving them fre accomodation? and are the live in workers on call at night?

[xrayspecs]

You may well have a case for recovery of the settlement from your employment lawyers, who after all, should be abreast of all current (and impending) employment legislation. Their neglegence has cost you money. Seek advice from the law society, then hire better lawers to re write your contracts separating the two aspects of the work and differentiating between working while living in and residing on the premises.

Hotel staff live in but their hours are contracted and they are not expected to set foot in the guest areas when "off duty" You may well be infringing employment law if they are expected to be "on call" 24 hrs a day. The answer may ultimately mean you hiring staff specifically to work through the night shift thus removing the necessity for staff to be "on call".

[Hgrove]

I severely doubt you will be able to recover from the lawyers who drew up the employment contracts - if, as I gather from your post, there had previously been no guidance (ruling or judicial decision) on this specific aspect, then your lawyers cannot really be called negligent for not thinking about it. However, all your competitors will now be in the same boat as yourselves. It seems to me everybody will have to pay for 24 hours. Did you try claiming that, as the law used to be unclear on this issue, you should only have to pay the 24 hours from now on e.g. not backdated?

[xrayspecs]

Check your position with the law society. There may not have been a legal precedent but your lawers should have been aware of any test cases being brought. If the law came in after your contracts were drawn up your contracts may well not be invalid, unless the judgement in the test case specified that the law was to be inacted retrospectively. Either way take advice.