Hi Sheila, is there a minimum wage a live in carer should get for being with a client 24/7?

According to the NMW, should it be paid at least 7.50 x 24 per day when the carer has to stay with the client day and night? Are there any laws or guidance for this?

 

Answered by Sheila Scott

Dear N,

Thank you for your question.

This is an employment law question so I sent it to Chris King one of our  Employment Law Specialists at Napthens Solicitors.

This is what Chris said:

‘I would be very surprised if there was such an arrangement where an individual is effectively “working” 24/7 as this would be both a potential breach of the Working Time Regulations and a Health and Safety issue. Normally these types of arrangements are dealt with under a Daily Average Hour Agreement whereby the individual and the care business agree that, due to the role, the working time is unmeasurable and that the individual’s average daily hours are therefore X amount and they are paid on that basis. This is lawful under Regs 49 and 50 of the National Minimum Wage Regulations. Government Guidance on Daily Average Hour Agreements are as follows:

https://www.gov.uk/minimum-wage-different-types-work/paid-in-other-ways-unmeasured-work

So long as the care business has done a genuine assessment of the hours the individual has actually works and agreed the rate on this basis then there should be no concern about NMW. This will involve a practical assessment of the role and what is required against what actually amounts to “work”.

In these circumstances mere presence may amount to “work” even if the individual is not performing tasks for the service user or perhaps is sleeping. For example, if there is a regulatory or health and safety requirement for the carer to be present and they are not allowed to leave the premises then this will be work that requires payment. This is especially the case if the carer would be disciplined were they to leave the premises and if they are effectively to be first point of action in the event of an emergency.

An employee or worker is entitled to be paid for every hour spent working so any failure to do so would be a breach of the NMW Regulations.

On a secondary note, the NMW rates increased at the beginning of April and the new National Living Wage rate is £7.83′.

I am very grateful to Chris for this comprehensive advice. I hope you find it helpful.

Best wishes.

Sheila