Issues facing paid care workers

I work under a zero hours contract, what does this mean?

Zero-hours contracts occur when a person agrees to be available for work as and when required but has no guaranteed hours or times of work. Their use for care workers helps the home care providers manage peaks and troughs in demand.

If you are on a zero-hours contract, you will usually have the employment status of 'worker' (at least). This means that in theory you should be entitled to the minimum set of statutory employment rights, such as the minimum wage, holiday pay, a workplace pension, rest breaks and protection from discrimination.

Further, being paid under the Pay As You Earn system (as most care workers are) provides a ‘secondary contributor’ (that is, someone who is liable to pay Class 1 secondary National Insurance contributions). This means that you may be able to receive statutory sick pay (SSP) and parental pay from your employer if you satisfy all relevant qualifying conditions. It is worth noting that this includes an earnings condition – for example, average weekly earnings (usually calculated over the previous eight weeks) should meet the Lower Earnings Limit (£123 per week in 2023/24). More on SSP below.

In response to concerns about the use of zero hours contracts, the government issued some guidance to employers. Although this is aimed at employers, it will be useful for workers too to help them understand their rights.

If you have any concerns about being on a zero hours contract, you could contact ACAS which is a free, confidential helpline to ask for advice on what to do next.

If I’m on a zero hours contract, do I get holiday pay?

All care workers who are classified as employees or ‘workers’ are entitled to holiday pay.

The minimum holiday entitlement under law is 5.6 weeks per year – this equates to 28 days for a person working a five-day week.

One method of calculating paid leave for those working irregular hours throughout the year, such as zero-hours contract workers, is to base entitlement on 12.07% of the hours worked (using the statutory minimum leave period of 5.6 weeks).

Example

Mary starts a new job and works 17 hours one week, 20 hours the next week, and then 15 hours for next two weeks. After a month of working, she has built up entitlement to approximately 8 hours of paid leave (67 hours x 12.07%).

If she usually earned £10.50 an hour, she would be entitled to £84 (eight hours x £10.50) when she took her leave.

Holiday pay is usually calculated based on your average pay rate in the preceding 52 weeks that you have worked, including bonuses, overtime, commission where relevant. If you have not been in employment for long enough to build up 52 weeks’ worth of pay data, your employer should use however many complete weeks of data they have. In Northern Ireland, it is based on average pay in previous 12 weeks. 

Holiday pay is a complex and ever-changing area of law. A recent Supreme Court case ruled that it was not correct to use the 12.07% method for a zero hour contract music teacher. The 12.07% method meant her holiday entitlement was prorated both for her irregular hours, but also on the basis that she only worked part of the year (term time). The Court said that this was incorrect and the teacher was entitled to 5.6 weeks leave at her average earnings, because she was employed for the entire year, even though she only worked for part of the year. 

This case means some people may be entitled to more holiday than before. However this judgement is in the context of a ‘part-year’ worker only - we understand that most care workers will not have significant numbers of weeks in a year where they are not working or not on leave so are likely to be full-year workers who just have irregular hours, rather than part-year workers. Additionally, the judgement looks to be ‘reversed’ by the government who want to change the law to ensure that holiday entitlement for part-year and irregular hours workers is proportionate to the time they spend working. They propose to do this by essentially putting the 12.07% calculation on a statutory footing.

You can find more information about holiday entitlement and how it should be calculated for workers with irregular working patterns on GOV.UK. Guidance on how to calculate holiday pay for workers whose hours and / or pay are not fixed can also be found on GOV.UK. If you are unsure as to whether your employer is dealing with your holiday correctly in your particular circumstances, you could seek further clarification as to your position from ACAS.

If I’m on a zero hours contract, do I get statutory sick pay (SSP)?

SSP (£109.40 per week from April 2023) is available to casual, zero hours contract and agency workers who earn an average of at least £123 per week (guidance to help monthly paid workers convert their earnings to weekly pay is on GOV.UK).

There is some information about SSP and different types of employment on GOV.UK.

The earnings taken into account are broadly the average weekly earnings for the prior eight weeks. Where you have not yet been in the employment for 8 weeks, SSP is worked out by reference to the amount of pay you are due to be paid under your employment contract.

To qualify for SSP you must have done some work under your contract (even if this is just a few hours). This means that if you are in a new job you may qualify for SSP even if you have not been paid yet. Zero hours contract workers who pay their tax and NIC under PAYE may qualify, provided they have done some work under their contract. Zero hours contract workers who have not yet done any work under their contract, will not be entitled to SSP.

If you think that SSP is due but your employer has refused to pay it, contact the HMRC statutory payment dispute team.

I don’t get paid for my travel time/costs, is this right?

Many home care workers are not paid for their travel time – this can sometimes cause problems with the national minimum wage/national living wage. There are two aspects of this to consider:

Travel between home and work

It is not a requirement under minimum wage law for a care worker to be paid for their travel from home to a place of work, nor their associated out of pocket expenses such as vehicle mileage. This is despite the fact that client demand may mean that you have a fragmented rota and with long gaps spent at home.

Interestingly, if you were to travel to the office to sit out a break rather than going home then the amount of time travelling to and from the office would count (although the time spent ‘resting’ there would not).

There are some useful examples looking at care workers and travel time/resting time on GOV.UK.

You may be interested to read our 2018 report in which we highlight this problem and call for a change in the rules.

Travel between appointments

It is not unlawful for care workers to have their travel time between appointments unpaid, so long as their total pay averages out at or above the appropriate minimum wage rate once travel time is factored in. This is probably best explained by way of an illustration:

Alison, 27, is paid weekly at £11.90 per hour. One week, her employer pays her £357 for 30 hours work (30 x £11.90). She spent three unpaid hours that week travelling between clients. The minimum amount paid to her should be the National Living Wage (NLW) hourly rate of £10.42 x 33 hours = £343.86. As she was paid above £343.86(i.e. above the NLW amount), no arrears are due even after taking account of the additional 3 hours unpaid working time.

The next week, she got paid the same amount (£357) but spent five unpaid hours travelling between clients. The minimum amount paid to her should be £364.70 (£10.42 x 35). She has been underpaid by £7.70.

Care workers who receive lower pay rates per hour are more at risk of being underpaid when travel time is factored into the minimum wage pay calculation.

In addition, where a care worker incurs costs in connection with their employment that are not reimbursed by the employer, including expenses for travel between appointments, these reduce the worker’s pay for minimum wage purposes. We explain more about the general rules in our news article.

So, if, in the first part of the example of Alison above, she incurred £20 of travel costs for those three hours of travelling, her pay would be taken to be £337 not £357. When we compare this to the bare minimum she should have received, £343.86, she has been underpaid. In fact, any more than £13.14 of unreimbursed costs for those three hours of travelling would constitute a breach of the minimum wage rules (that is, £357 less £343.86).

For minimum wage purposes, we understand that where care workers are using their own cars to travel to between clients, ‘costs’ are probably limited to actual petrol expenses rather than including any contribution towards wear and tear or other vehicle related expenses.

All of this means that, in practice, employers should consider reimbursing fuel costs in full on top of a national minimum wage hourly base rate for workers who are on or around the national minimum wage. This will ensure the employer does not fall foul of the NMW rules. Alternatively, employers may need to increase the worker’s hourly base rate so that there is enough ‘head room’ in it, to absorb the fuel costs without taking their average pay below the NMW.

If you think you are not being paid the minimum wage, you should talk to your employer in the first instance. As set out in our news article, at this stage, the employer can fix any underpayments informally themselves without the authorities getting involved. If this makes no difference, or you are still confused about your situation, you can seek advice from the ACAS Pay and Work Rights helpline who will investigate your case and complaint in the strictest of confidence, taking action against the employer as necessary and demanding any arrears due to you.

For more information on how the minimum wage should be calculated, including how the accommodation offset works and how things like training, tips and uniform deductions should be dealt with, please see our national minimum wage page.

If you are paid more than the minimum allowed by law, then whether your travel time and costs are paid/reimbursed is a matter for negotiation between you and your employer. You should check any contractual terms and conditions you sign up to, very carefully.

I incur costs related to travel, can I get tax relief?

Yes – for tax purposes, many care workers will be able to deduct all their travel costs from their taxable income, including from home to work. However, you will need to have paid some tax to get tax relief – more on this below.

Under the tax rules on travel expenses, a deduction for your travel costs are allowable for tax purposes if:

• You have to make the journeys in the performance of the duties of your employment (this may apply where the duties themselves inherently involve travelling such as a delivery driver or meter reader); or
• They are journeys which you make to or from a place you have to attend in the performance of your duties, which can include trips from your office or other work location to visit a customer or other workplace. This rule can also include travel directly from your home to visit a customer or to another workplace (unless the journey is practically the same as the journey from your home to your normal place of work, for example, because the customer lives near your office).

You can find more information in HMRC’s manual. Arguably, many care workers will be able to deduct all their travel costs (including from home to work) from their taxable income under the first rule, This is because, like a ‘service engineer who moves about from place to place during the day, carrying out repairs to domestic appliances at client’s premises’ (wording taken from the manual), their duties inherently involve travelling. Even if you do not have a travelling appointment it is likely every place that you attend is a temporary workplace, which means that relief should be due under the second rule.

Where the rules apply to a journey, and you incur rail, bus, and other transport charges, to the extent they are not fully reimbursed by your employer they can be claimed as a tax deduction.

If you use your own transport for such journeys there is the statutory system of tax-free approved mileage allowances for business journeys available. If your employer pays less than these amounts, you can claim tax relief for the unused balance of the approved amount (this is known as the Mileage Allowance Relief (MAR) system).

Vehicle	Mileage in tax year	Rate per mile
Cars and Vans	Up to 10,000 miles	45p
	Excess over 10,000 miles	25p
Motorcycles	No restriction	24p
Bicycles	No restriction	20p

The mileage rate covers the costs of running and maintaining the vehicle, such as fuel, oil, servicing, repairs, insurance, vehicle excise duty and MOT. The rate also covers depreciation of the vehicle.

Note, that there is some HMRC guidance that suggests that where care workers are agency workers, they will only accept that the cost of travel between different jobs on the same day is allowable, and they will not accept a deduction for the cost of travel from home to the first job of the day or to home from the last job of the day. We are not clear what HMRC are basing this interpretation on. Indeed, there has recently been a case where HMRC’s stance on this has been called into question.

In the case of Amara Akhtar, a care worker made an estimate of her mileage as she had kept no records. HMRC disputed the estimate and in particular, sought to calculate her mileage on the basis of the travel undertaken whilst working only - and not including the travel between her home and the first and last job of the day. The First Tier Tribunal disagreed with HMRC and found that travel between her home and the first and last job of the day should be included. The Tribunal's decision on this aspect of her case was most helpful to her. However, in calculating the 'correct' mileage, including home to work mileage, the Tribunal had to resort to using records recreated retrospectively based on samples of scheduled client visits pulled from the employers system, extrapolation and Google maps. This should, by no means, be relied upon and it is very important that care workers keep good, detailed mileage records.

How do I get tax relief on my travel costs?

Even if you meet the rules on allowable travel, you need to have paid enough tax to get tax relief. In 2023/24, you will usually pay tax on your earnings over £12,570. In other words, if your income is less than £12,570 you will not be able to get any tax relief on travelling expenses that are not reimbursed by your employer.

Example

Josie earns £13,000 in 2023/24. After the personal allowance is deducted, she will have taxable income of £430, which at 20% means that she will pay £86 tax. She has qualifying expenses of £100 which she has paid for from her salary. By putting in a tax claim for this, she will not get the £100 back from HMRC, but will get the tax back that she has paid on the £100. As she has paid tax at 20%, this will be £20. Even though she will also have paid 12% National Insurance on the £100, there is no National Insurance relief available.

If Josie’s expenses were £600, her tax claim would be restricted to £430 and her refund restricted to £86.

To get tax relief, you have to make a claim to HMRC, but it is quite straightforward. If you do not usually have to complete a tax return, a claim can be made on form P87.

There are plenty of organisations which offer to make the claim for you, but they will take a fee from any repayment you get. If you are thinking of paying a tax refund company to help you make the claim, we strongly recommend you read our guidance.

Where the amount of employment expenses exceeds £2,500, then the tax refund claim must be made through the completion of a more formal Self Assessment tax return.

Do my costs get recognised for tax credits/universal credit?

A person’s entitlement to working tax credit is based upon his/her level of taxable earnings – against which permitted tax deductions are taken. Permitted deductions can include travel expenses that you are entitled to tax relief for.

This means that where £50 of a care worker’s £275 weekly earnings are attributable to travelling expenses, they will have an annual income for tax credit purposes of £11,700 (£225 x 52), rather than £14,300 (£275 x 52), potentially meaning a higher tax credit award.

For tax credits, employment expenses are deducted from income if they are allowable for tax, even if full effect cannot be given to them for tax purposes because the worker does not earn enough to incur a tax liability.

A similar rule applies for universal credit.

For example

If a care worker does 10 miles travelling a day for work, for say, 46 weeks a year, and her costs are unreimbursed by her employer, then her Mileage Allowance Relief claim would be £1,035 (10 x 45p x 5 days x 46 weeks). This means her earnings for universal credit purposes in each monthly assessment period could be reduced by £86.25 (£1,035 divided by 12). Universal credit's ‘taper rate’ of 55p in the pound means that a £86.25 deduction could result in a £47.44 increase in her universal credit award depending on her level of award and circumstances.

However, you should be aware that both tax credits and universal credit can use earnings information received by HMRC from employers to set awards, which does not include unreimbursed expenses amounts. You will therefore need to provide tax credits/universal credit with revised earnings amounts.

You can find more information on how to do this for tax credits on our specialist site, RevenueBenefits.

For universal credit, we understand this can be done via your UC online account journal (for more information see GOV.UK).

Why is my unpaid travel time not counted for tax credits?

Working tax credit (WTC) is payable to claimants who are in ‘qualifying remunerative work’ and who are on a low income. There are certain age and hours of work qualifications.

Qualifying remunerative work is work for which the claimant is, or expects to be, paid. There is an issue for care workers here: if your employer does not pay you directly for your travel time (even if your overall remuneration at least equals the minimum wage) then it is not paid work for tax credits and your weekly remunerative hours may be insufficient to meet the minimum WTC requirement.

If you are in this situation, you could try talking to your employer about making changes to your terms and conditions.

What if my hours change week by week – how does this impact tax credits?

If your weekly hours of paid work change this can affect entitlement to working tax credit (WTC), as there are rules about how many hours you have to work to qualify. However, the working hours rule in tax credits depends on the hours of work you normally do per week and so, often, fluctuations of a few hours week by week will not make a difference as long as you normally continue to work the minimum required for your circumstances. If things change significantly so that your normal weekly hours of paid work change, you will need to tell HMRC as this could affect your award.

You may be entitled to more money if your hours increase and you start to normally work at least 30 hours a week, or your WTC may reduce or stop if you reduce your hours below one of the thresholds. Note that while your income, as well as your hours, may fluctuate, the disregard system provides some cushioning for tax credits purposes, meaning that your income can rise or fall by £2,500 compared to the previous year before your tax credits are changed in the current tax year.

You may be interested to read our 2018 report in which we look at how the tax credits system copes with fluctuating hours and incomes. Universal credit (UC) is gradually replacing tax credits. Unlike WTC, for UC, you do not need to work a minimum number of hours to qualify but there may be a minimum amount that you are expected to earn.

I have fluctuating earnings, how does auto-enrolment apply to me?

Under auto-enrolment, employers have to automatically enrol eligible workers into a qualifying pension scheme, if they are not already in one.

Your income may vary, but if at any point, you earn more than the eligibility threshold for your pay period (£10,000 per annum, £192 per week, £833 per month), your employer should auto-enrol you into their workplace pension scheme at that time (or after three months if they have decided to postpone you).

Once you have been enrolled, and assuming you do not opt out, your employer will then calculate pension contributions each time you are paid, in accordance with a set percentage (in 2023/24, for you personally, this is usually 5% (or 4% if you are eligible for tax relief) and for your employer this is usually 3%). The percentages only apply to qualifying earnings over £6,240 (or the appropriate amount for your pay period). If your income fluctuates, this may mean that in some pay periods you could earn enough for there to be pension contributions, and in other pay periods you will fall short and there will be none.

However, if you are underneath the official entry point, you can still ‘opt in’ to auto-enrolment if you want to – and may get an employer contribution. Further, most pension schemes will allow workers to contribute more than the minimum they need to under law, either by increasing their contribution by a set percentage or by making an ad hoc contribution – thus allowing care workers who can afford it, to build better pension savings.

You can read more about auto-enrolment in the employment section.

Do my pension contributions get recognised for tax credits/universal credit?

It may be useful to know that the cost of pension contributions may be lower than you think if you are on tax credits or universal credit (UC). This is because in the calculation of tax credit and UC income, employees may deduct 100% of pension contributions (if they haven’t already been deducted). This means that a higher tax credit or UC award might result from the deduction of employee pension contributions from assessable income. For example, UC’s ‘taper rate’ of 55p in the pound means that a £100 pension contribution could result in a £55 increase in your UC award depending on your level of award and circumstances.

I’m not earning enough to pay National Insurance (NIC) – will this affect my contributions record?

If you earn above the ‘Lower Earnings Limit’ in your job (£123 per week for 2023/24), but below the NIC threshold of £242 per week, you are credited with NIC, even though you do not have to actually pay NIC. These credits count for your contributions record (for state pension, and other contributions based benefits).

If you do not earn at least the lower earnings limit in your job, you will not get any NIC credits. If this is the case and you do not get credits for any other reason (for example, because you are claiming child benefit) you may want to consider making Class 3 voluntary NIC payments to help protect your contributions record.

These are quite expensive, so before committing yourself, you should consider if it is necessary to make them in light of how many qualifying years you already have and your future potential to make up any ‘gaps’.

You should contact the Future Pension Centre to get an indication of your likely state pension at retirement age. You can also check your state pension through HMRC’s Personal Tax Account facility.

You can find out more about NIC credits and making voluntary contributions on our website.

I heard you have a special care worker factsheet?

Yes, our Pay and tax issues facing care workers factsheet offers information and guidance on a number of areas in which care workers are likely to face issues, including:

• Whether travel time counts as hours worked for minimum wage purposes
• Deductions that can be made when working out pay for minimum wage purposes
• What happens for minimum wage purposes if an employer pays differing rates for contact time and travel time or if calls are cut short or overrun
• What to do if you are being underpaid the minimum wage
• How minimum wage arrears are treated for tax and National Insurance purposes
• Whether tax relief is available for unreimbursed costs incurred by care workers
• How working tax credit and universal credit works for care workers

It also includes helpful ‘real-world’ worked examples and links to more help.

We hope that this factsheet will make a real difference to care workers and that in time it will lead to better employer practices within the sector.

If you are a care worker and find the factsheet useful, please do share the factsheet amongst your colleagues. If you feel it would be beneficial for LITRG to expand on any of the areas covered or if you do not think we have covered what you wanted to know, or would like to tell us of your experiences so we might learn and try and get things changed, please do contact us.