A hard day’s night
Low pay is one of the big dilemmas facing housing staff who work overnight shifts. Are they being short-changed by their employers? Chloë Stothart investigates
When Joanna Andrews* applied to work in a hostel for homeless teenagers, she knew the job would involve some night shifts as well as daytime work. ‘In the contract the housing association made it sound like we would be paid our hourly rate [at night] and £24 on top. I even checked it with HR,’ she said. However, after getting several other people to look at the contract, she realised the organisation would only pay her £24 per night. Once she added the £48 she got for two night shifts per week to her salary of £10,000 to £11,143, which covered her 20 hours of daytime work a week, she reckoned she was earning about £3 an hour - well below the minimum hourly wage of £5.80. She said the housing association confirmed this was true for the night shift. But it told her when her daytime salary was taken into account, she was earning over the minimum wage in total.
Her night shifts were ‘sleep-ins’ where she would be expected to stay in the hostel to carry out various duties and in case of problems at night, but could sleep in between. ‘In the first interview they implied I would not need to get up at night, in the second interview they implied you would get up about three times a month and when I took the job they said it would be about twice a week,’ she says. ‘It kept going up and up.’ A day shift followed by a sleep-in shift would total 18 to 20 hours of work.
In the end, she changed her mind and decided not to take the job after all; she was put off by the poor pay for the night work and being left in sole charge of 20 teenagers, which she felt was unsafe. She also worried that, as a mother of three, the probable lack of sleep would make home life difficult. ‘I thought, seriously, are people working for £20 a night? It is just wrong,’ she says.
So how typical is Joanna’s story and does this mean that housing providers are acting illegally?
Trade unions say poor pay for ‘sleep-in’ shifts, resulting in staff earning below the minimum hourly wage overall, is common. Britain’s biggest union, Unite, began a campaign at the end of April to encourage its members to report abuses to their representatives after uncovering several examples. Rachael Maskell, national officer for the not-for-profit sector at Unite, says the union would prefer employers to make back-payments to staff if they have been paid below the minimum wage but will help its members take legal action for unlawful deductions of wages if necessary.
A common problem
The practice of low allowances for sleep-in shifts which take overall earnings below the minimum wage is common in residential schemes, such as hostels for homeless people and sheltered accommodation, drug treatment centres and domestic violence refuges, say union representatives. Colin Inniss, regional officer for London at Unison, says: ‘It is extremely common. It has a severe impact on people’s health and home life.
Sometimes members are working in excess of 48 hours and they only do this because they need the money.’ He also said lone working at night was also fairly common as employers tried to drive down costs.
The legal stance
The legal position on pay for ‘sleep-in’ work varies according to whether the staff member is salaried or paid by the shift or the hour. Ritchie Alder, a partner at Trowers & Hamlins, says employers must ensure they pay at least the minimum hourly wage for staff during night shifts, including when they were asleep, if they were paid daily or by the shift. However salaried staff must receive the minimum hourly wage when their working hours are added together and their pay is averaged across them. He says: ‘A lot of employers in the sector are already paying a lot more than the minimum wage even when you factor in sleep-in hours.’
Employers must also be aware of working time rules, which specify how many hours staff can work and how often they must have a break.
Mr Alder says time spent asleep at work when staff are ‘on call’ counts towards working time regulation limits unless the chance of being woken up is negligible.
However, rules on how ‘on call’ working counts towards working time could change. The European Commission launched a consultation on the working time directive, including the calculation of ‘on call’ hours towards working hours and the period over which weekly hours can be averaged and rest given. The paper, which asked whether member states wanted the rules to change, said the European Court of Justice had ruled in several cases that all time spent on call should count towards working hours. But it suggested that periods of inactivity such as sleep could be disregarded or partially discounted when calculating working hours.
The first phase of the consultation has closed and the European Commission will hold a second phase of consultation at the end of the summer. A spokesperson for the commission said it was too early to say whether the rules would change. The consultation paper, however, said current rules gave ‘insufficient legal clarity’ and did not protect workers while giving flexibility to businesses.
Louise Rea, a solicitor at Gordons, said a new category of ‘inactive part of on-call time’ which is neither working time nor a rest period, would make it less likely that employers could inadvertently pay less than the minimum wage for every hour of working time.
In the meantime unions can expect to be taking calls from worried workers while employers check their contracts and brace themselves for legal challenges.
*Names have been changed
Case study
Residential care assistant James Billingham* had to follow his afternoon shifts with a night shift if one of the night staff was absent.
He worked from 1.30pm to 7am if he had to cover a night shift in addition to his afternoon and evening work. He was not paid anything for the night shift but given the next day off in lieu.
His employer argued that the salary of around £14,000 included compensation for being asked to work nights at the last minute after finishing a day shift.
But James says the wages were similar to other jobs which did not have that requirement. He estimates he covered 10 to 15 nights in the three years he did the job.
Although the arrangement was legal, it made it difficult for James to plan out-of-work activities because he did not know whether he would be asked to cover a night shift at short notice.
‘You had to plan everything around what could come up and a number of times you had to make changes,’ he recalls.
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