[b]Live in workers are lottery winners![/b]

[linmel]

We are a small company providing accomodation and support to persons with special needs. We employed live in support staff with the knoweldge that after 10.00 pm to 8.00 am the support staff are 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 thereby 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. We would appreciate some good advice.
:!:

[confused]

Hi,

Im really sorry to heear about your predicament, I'm not a legal person so cant help, but
Our employment contracts are drawn by specialist employment lawyers and even they failed to realise this
Then isnt it the lawyers fault? shouldnt they have to fork out for your losses since it was their mistake initially? I thought thats one of the reasons they cost so much - because they have to be right!

CALV

[bwglaw]

Hi,

Im really sorry to heear about your predicament, I'm not a legal person so cant help, but
Our employment contracts are drawn by specialist employment lawyers and even they failed to realise this
Then isnt it the lawyers fault? shouldnt they have to fork out for your losses since it was their mistake initially? I thought thats one of the reasons they cost so much - because they have to be right!

CALV

I don't think the lawyers who drafted the contract can be blamed because employment law changes frequently and it is the employer's duty to ensure they comply with the law and have the contracts checked periodically.

[bwglaw]

We employed live in support staff with the knoweldge that after 10.00 pm to 8.00 am the support staff are not disturbed.

The fact that they are 'live-in' does not automatically entitle them to 'sleeping time' pay, unless the worker must be available or near the place of work. It is a question of fact whether the worker is 'on-call' because on-call time is not the same as normal working time.

With the issue being a question of fact, I am unable to advise further without the exact details, including copies of employment contracts, policies/procedures etc.

If a claim has already been made in the Employment Tribunal and you are about to sign a Compromise Agreement, you do need to get some legal advice before doing this.

If you have Employer's Liability Insurance this will generally cover your legal costs of instructing a solicitor.

Have you actually sought advice from a solicitor?

[confused]

I don't think the lawyers who drafted the contract can be blamed because employment law changes frequently and it is the employer's duty to ensure they comply with the law and have the contracts checked periodically
In the original post it said that "even they failed to realise this hence drawing up flawed contracts for our company" Which is what led to my thought that it was their fault, rather than laws changing after the contracts had been drawn up.

[Pebble Communications]

This is an issue that is affecting a lot of care providers and you need to get some specialised legal advice.

The issue is that in a sense they ARE on call during that time; if you didn't need staff there at night then they wouldn't be live-in, would they. The fact that they are normally not disturbed during that time is irrelevant...they have to be there in case of emergencies? Is there actually a rota or some requirement for a certain number of staff to be there? This shows that it forms part of their 'work'. If, however, it is just that the accommodation is provided as part of their salary package, and they are all free to all go out and leave the building all night if they wished, then it is not part of their 'work'. You can't have it both ways unfortunately; if you require staff to be present, even if they are sitting in their rooms watching TV, they are still 'at work' and you have to recompense them for this. If they are not at work then they don't have to be there.

[bwglaw]

I don't think the lawyers who drafted the contract can be blamed because employment law changes frequently and it is the employer's duty to ensure they comply with the law and have the contracts checked periodically
In the original post it said that "even they failed to realise this hence drawing up flawed contracts for our company" Which is what led to my thought that it was their fault, rather than laws changing after the contracts had been drawn up.

The right to 'sleeping time' was recognised not long ago. When was the contract drafted? I have come across some employers re-using contracts dated some 10 years ago, which obviously may not cover some new rights. It is for this reason that the lawyer that drafted it may not be to blame here. Timing here is an issue.

Did the employer actually use a qualified solicitor (who actually holds a Practice Certificate, since a qualified solicitor is not necessary practising and up to date)? Unfortunately, virtually anyone can call themselves a 'lawyer' as this denotes someone who practises law, even though the dictionary gives a different meaning. I have had this confirmed by the Professional Ethics Directorate at the Law Society a few months ago.

[bwglaw]

The issue is that in a sense they ARE on call during that time; if you didn't need staff there at night then they wouldn't be live-in, would they.

Not necessarily and you cannot speculate in these circumstances with inadequate facts. Provision of accommodation can be construed as a benefit in employment law. The case here I have the feeling that he employed some Eastern European workers (referring to another thread) and may have agreed to provide accommodation in exchange for services.

Like I said, it is a question of fact and there is very little facts to assess the situation.

The fact that they are normally not disturbed during that time is irrelevant...

It is relevant! Their contract could simply state that they work between certain hours and out of those hours they merely live there because accommodation is provided as a benefit, especially if they are foreign workers and do not wish to take up private accommodation elsewhere. We cannot assume that the residents require 24-hour care and that providing 24-hour care is part of every worker's contract.

they have to be there in case of emergencies? Is there actually a rota or some requirement for a certain number of staff to be there? This shows that it forms part of their 'work'.

This would then mean they should be paid. How much they are paid depends on the facts whether it is 'unmeasured work' or 'working hours'

If, however, it is just that the accommodation is provided as part of their salary package, and they are all free to all go out and leave the building all night if they wished, then it is not part of their 'work'.

Correct, I mentioned it also, and just noticed that you explained this.

if you require staff to be present, even if they are sitting in their rooms watching TV, they are still 'at work' and you have to recompense them for this.

It is not as clear as it sounds and is still a grey area in employment law. The staff could be 'off-duty' and still have use of the communal facilities and many employers often 'cloud' the working relationship by providing facilities/benefits to reduce costs. It is a questions of fact, as you rightly mentioned, whether they are free to leave the building and whether the employer's element of control still remains in tact 24-hours a day, or just the hours they work.

It is worth comparing the two cases:

British Nursing Association v. Inland Revenue (NMW Compliance Team) [2002] IRLR 480, CA and; Walton v. Independent Living Organisation Ltd (2003) 731 IDS Brief 9, CA

[linmel]

Thank you to everyone who replied.

I would like to further tell you that we have a contract with the employment lawyers for the period of 3 years. They would update all aspects of contracts and other legal issues of employment for us. We even have a 24 hours helpline with the consultant. That's how much we paid them!

Well spotted Hands On Group that the workers were in fact east europeans.

Walton vs Independent Living Organisation Ltd 2003 731 IDS brief 9, CA is very similar case. The only difference is that our staff were on the premises 6 days a week. However this case took place in 2002. Could it be that the regulation 15 (1A) is amended?

[bwglaw]

I would like to further tell you that we have a contract with the employment lawyers for the period of 3 years. They would update all aspects of contracts and other legal issues of employment for us. We even have a 24 hours helpline with the consultant. That's how much we paid them!

3 years from when? Does the service contract actually make provisions for updating when the law changes? You mention 'consultant' - are they actually qualified lawyers? You can PM me their details in confidence and I can do a check for you.

If they have acted negligently then you may be able to bring a claim against them for Professional Negligence and claim damages, possibly equating to the loss (if any) of the case currently in the Employment Tribunal.

Well spotted Hands On Group that the workers were in fact east europeans.

Are they actually entitled to work in the UK? Are they under Immigration control. In some cases foreign workers can be under an illegal contract, but I am unable to ascertain without the full facts. You also have to be careful how to go about this because employers have a legal duty under the Immigration and Asylum Act 1999 to check that each and every employee is entitled to work in the UK. Failing to do this is a criminal offence.

Walton vs Independent Living Organisation Ltd 2003 731 IDS brief 9, CA is very similar case. The only difference is that our staff were on the premises 6 days a week. However this case took place in 2002.

I am not sure whether you can cite this case as authority in your circumstances because I do not know when your case appeared before the Employment Tribunal. If it was quite recent, you can use the above case as a precedent, if it supports your case.

Could it be that the regulation 15 (1A) is amended?

I could not find reg.15(1A) but found reg.15(1) of the National Minimum Wage Regulations 1999 (http://www.opsi.gov.uk/si/si1999/99058402.htm#15) and it does not appear to have been amended.

[linmel]

The contract between the employment consultants started on may 2005. Yes they are qualified lawyers.

The employees were from the new member Eu states.

Discussed walton v ilo ltd case to our lawyer. He said that he was aware of the case and had to dismiss it. It did not apply to our case. Walton case judgement in para 11 was on unmeasured work. Strangley we have the same work but our contract state time work i.e. workers are paid by the hour. no advice was given about this difference at the time of drawing up the employment contract.

[bwglaw]

The contract between the employment consultants started on may 2005. Yes they are qualified lawyers.

The employees were from the new member Eu states.

Discussed walton v ilo ltd case to our lawyer. He said that he was aware of the case and had to dismiss it. It did not apply to our case. Walton case judgement in para 11 was on unmeasured work. Strangley we have the same work but our contract state time work i.e. workers are paid by the hour. no advice was given about this difference at the time of drawing up the employment contract.

Ah. Polish workers. I have actually represented a few foreign workers, including an American worker on a sex discrimination claim and succeeded.

Your lawyer will know best because he/she will have the full facts to hand when applying the regulations and any precedents. I am currently out of the UK and do not have access to the full facts of the cases I cited off the cuff.

You do seem to have it in hand. I wish you luck. If you need further assistance just email me at the email address below. I hope you have found my input useful in any event.

[linmel]

Thank you Hands On for your input. it was certainly very useful.

Just I dont understand why our employment lawyers did not advise us on unmeasured hours contract as surely it could have covered the 24 hours issue.

Shame that we employ specialist lawyers that cant get the basics right. however we will keep you in mind for future reference.

[Antonia @limeone.com]

It seems to me that if your lawyers were on contract, and they knew the nature of your business then there may be some negligence here to investigate.

One of the most successful employment law agencies to business is not a law firm and whilst they employ some lawyers many of the advisors are not legally qualified at all and have never studied law, they come from the HR route to advice.

The main issue here is whether their advice should have been given under the terms of their retainer or contract.

All legal advisors, to carry professional indemnity insurance, need to demonstrate not only relevant legal qualifications but also CPD (continuing professional development) in the same way that traditional lawyers working in High Street practices do. This also ensures solicitors who have been banned from practising cannot gain insurance to carry out this work so worth asking your legal consultant this too.