Time workers should be paid the National Minimum Wage to ‘sleep over’

Posted on Jan 15th, 2014 | Employment

Updated October 2015. PLEASE NOTE THAT FROM SEPTEMBER 2016 THIS POST WILL NO LONGER BE UPDATED, OR COMMENTS ANSWERED – YOU CAN NOW READ OUR UPDATED ADVICE ON THIS TOPIC HERE.

At the end of 2013 an important case went to the Employment Appeal Tribunal (EAT) – Whittlestone v BJP Home Support Ltd – which confirmed that employees who are engaged on ‘time work’, and who are required to ‘sleep over’ at a specified location as part of their work, are entitled to be paid the National Minimum Wage for all hours they have slept-over. This is regardless of whether their sleep is interrupted by work or not.

Mrs Whittlestone was employed by BJP to provide care services – she was paid at the rate of £6.35 for her ‘standard’ shifts and was also obliged to do on-call shift ‘sleepovers’ (from 11pm to 7am) for which she was paid a £40 allowance. She was provided with a bed and permitted to sleep if her services were not needed by the service user.

The EAT had to consider whether such sleep-over work was ‘time work’ for the purposes of the NMW Regulations.

 

They decided Mrs Whittlestone was employed on ‘time work’ because she was paid according to the hours she worked. The Judge considered that ‘sleepovers’ were working hours and therefore ‘time work’ because she was required to be present at a specified place as part of her work for these hours and her failure to be available and/or work during such a shift could have resulted in disciplinary action; this was irrespective of whether she had to do any work when she was there. There was no evidence she had ever woken to provide care but the Judge said the level of her activity was not relevant.

The wording of the contract is important here, and the judgement is an indication that each case will be decided dependant on its own factors. What was important in this case was whether Mrs Whittlestone was required to be on the premises for a stated purpose and whether she could have been disciplined had she left the premises during the night.

It was her job to be at the service user’s home (under her contract of employment) and her activities during sleepover hours were limited by the fact she needed to be on the premises, so the Judge said she was entitled to be paid the NMW for the duration of the shift.
If you are paid more than the NMW for your ‘standard’ hours then this judgement may not be significant, as your employer just needs to pay you at least the NMW for all the hours you work within the relevant pay period. If you are ‘on call’ over night, and night time work is not an essential nature of the job, any time spent not working is usually regarded as non-working time.
This decision was reinforced in a June 2014 case Esparon v Slavikovksa – where the key factor was that her employers were required to have a suitable person on the premises overnight to comply with care-home regulations.
*‘Time Workers’ are defined by the National Minimum Wage legislation (NMW) as those who are paid an hourly rate in relation to the time they work and it is likely their hours may vary – for full details of the NMW, see our Guide here.

However, in October 2015:

In Shannon v Rampersad & Rampersad t/a Clifton House Residential Home – Shannon worked on-call in a care home at night, but was allowed to sleep during those hours (responding to any requests for assistance by a night care worker on duty; which was very rare) and he received free acommodation in a studio flat in the care home. He was paid the NMW for the times when he did work. The Employment Appeal Tribunal found that although he was required to be on site and was allowed to sleep in a studio that was his home, he rarely had to respond to calls to work as there was an ‘on duty night worker’ present. The EAT held that only at those time when he was awake for the purposes of working counted as paid working hours.

If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk (click here) – a Human Resources Consultancy for small businesses – you can retain us for as much time as you need.

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.

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Written by Lesley Furber

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