Page 25 - ELG1807 July Issue 459

FEATURES & COMMENT

CASE STUDY: DO YOUR DUTY ON NIGHT DUTIES OR YOU MAY FACE THE TAXMAN

This example (below), based on an actual job period in which they occur. Overtime done employee’s legal status to that of a night
description, highlights many of the problems in the week they are paid must be included in worker. Night workers are only legally allowed
with the sleep-in regulations. that payment. Time off in lieu taken after the to work 48 hours a week – the night shifts in
A job description from a school picked at pay reference period does not count. our schedule already add up to 46 hours.
random says it employs house parents for an Unusually, but not uniquely, staff are The final thing to point out is that the
average 48-hour week. The remuneration required to do some night duty from 11pm to schedule is not clear whether the meal duties
package, including free accommodation, 2am. are not counted as working hours.
covers a 49-hour week at the top minimum- More problems: the sample schedule below The fact that a worker is required to be
wage rate, rising to 53 hours for younger shows four night duties. These would be on the premises of the employer and cannot
workers. payable for the full eleven-and-a-half hours leave counts as ‘working time’, whether they
The job includes student supervision duties, from lights out. are doing their core job, supervising, on call or
a full-day excursion and ten and a half hours If night duties are being done more simply playing dominoes with the caretaker.
of work on Sundays when they have to go to than twice a week, this would change the
the airport.
Staff are expected to keep a record of their Mon Tues Wed Thurs Fri Sat Sun
working hours and make a weekly report on
any over-time done. 8.00 Wake up Wake up Wake up day off Wake up Wake up Airport
Problem: It is now the legal responsibility Breakfast duty Admin (2) Full-day Admin (2) Admin (2)
Meeting
of the employer to monitor employees’ hours, Admin (2) excursion
and failure to keep proper minimum-wage
records is a criminal offence. However, 12.30 Lunch duty Lunch duty Lunch duty House duty
employers can require workers to fill in time House duty House duty House duty
sheets, in which case only hours actually
claimed are payable. However, HMRC would 14.00 Meeting Meeting Meeting
argue that employers have to pay not only for 18.30 Dinner duty Dinner duty Dinner duty Dinner
the hours worked but for the hours that they supervision
are required to be on site.
House
House
The job description states that staff may be 19.30 supervision supervision Friday party Meeting
required to work more than 48 hours in some
weeks. Time off in lieu is ‘given at later date’. 22.00 Lights out Lights out Lights out Lights out
Problem: Minimum wage for every hour Night duty Night duty Night duty Night duty
worked must be paid in the pay reference This schedule was adapted from a random summer school timetable found on the web

chips’ without fear of being disciplined, then they
need not be paid when they are sleeping.
This is not likely to be the case for schools
offering free accommodation in return for ‘full
residential support’.
Nor schools requiring teachers to ‘sleep in a
room in close proximity to the students and be
prepared to respond if there are problems during
the night’.
In fact, the problem with most of the job
descriptions we examined was that they seemed to
imply that every worker had to remain on campus
unpaid all night, every night, six days a week.
A job description is not a contract.
So schools need to make sure that their
contracts are written so that employees who do not
have primary responsibility do not need to be paid
while sleeping. The current government advice is
that workers without primary responsibilities will
not be considered to be working when they sleep
if their contract sets out ‘their working time, any
period they are permitted to sleep during a night
shift’, and allows them to leave the campus during
the night without being disciplined.
Of course, all these regulations may be struck
down by the Appeals Court any time now. If that
happens, then we will let you know.
But if they aren’t, it looks to us from the job
descriptions we have seen that many summer
schools need to change their business model in
case HMRC comes calling.
editorial@elgazette.com 25

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