We know that health care assistants’ pay rates in the independent sector are often set at the national minimum wage/national living wage (NMW/NLW) or a few pence above it.
In some cases the combination of normally paid hours and the failure to pay sleep-ins at an appropriate rate has resulted in overall pay falling below the NMW/NLW.
Recent case law had established that sleep-ins were covered by the NMW regulations. If a worker is expected to sleep-in at their workplace then these hours were deemed as working hours. This was overturned at appeal recently (June 2018) meaning that employers do not have to pay NMW for such time (at the time of writing the claimant is considering a further appeal).
The RCN believes that all working hours should be paid, on average, at a minimum of NMW over the pay period.
The same is true for workers who have to travel between clients during their shift or undertake mandatory training outside rostered hours. Recent HMRC advice suggests that mandatory training time is also classified as working time and so could also lead to a technical breach of National Minimum Wage regulations if not paid.
This is unlikely to affect members who are paid significantly above NMW, as sleep-ins, training and travel time do not have to be paid at NMW, but overall, total pay for total hours worked must be at least at NMW.