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National Minimum Wage for on-call night workers living at work
There is considerable confusion surrounding what a worker living at their place of work, or carrying out “sleep-in” shifts, is entitled to be paid for National Minimum Wage (NMW) purposes. For many workers in the care sector, living at their place of work or sleeping over poses misunderstanding surrounding what is considered to be working time that a worker is entitled to be paid for.
In a number of cases in recent years, including Rossiter v Burrow Down Support Services and, more recently, Esparon t/a Middle West Residential Care Home v Slavikovska, it has been decided that sleep-in hours should be paid at the NMW rate as these were considered to amount to working time where the workers were required to be present.
However, the Employment Appeal Tribunal (EAT), in the recent case of Shannon v Clifton House Residential, concluded that there was no entitlement for the worker to be paid the NMW for all the hours spent on-call during their sleep-in shifts. The circumstances surrounding Mr. Shannon’s employment were unusual. He was employed by the care home to work night shifts, and had another role during the day. The care home provided him with a flat based at Clifton House, in which he lived, and his role required him to be in his flat between the hours of 10:00pm and 7:00am. The claimant was entitled to be asleep during this time, although was required to offer assistance upon the request of the waking night staff. He was, essentially, on-call.
The claimant sought payment at the Employment Tribunal for each night he had been required to be on-call, although he was sleeping during this time, since 1999. However, the tribunal found that there was a number of staff who were employed to cover the night shift, and therefore the claimant was rarely disturbed throughout the night, and was able to sleep. In light of these facts, the Employment Tribunal rejected his claim confirming that he was only entitled to NMW for the hours he was awake and working (a decision that was supported by the EAT).
What does this mean for workers undertaking ‘sleep-in’ shifts?
This issue is extremely complex and fact specific, and certainly does not mean that workers are no longer entitled to the NMW for sleep-in shifts.
This case demonstrates that it cannot be assumed that a worker is entitled to NMW for undertaking a ‘sleep-in’ shift, as it is dependent on the individual facts and circumstances of each case, including the type of work, and the amount of work, carried out.
Importantly, it also demonstrates that the mere presence of a person does not in itself entitle a worker to pay at the NMW rate for all of the time spent on-call. A worker would only be required to receive payment for the time spent on-call if presence, itself, is a requirement of their role.
Oliver McCann, Employment Partner, Napthens LLP – QCS Expert Employment Law Contributor