Getting paid whilst being asleep!
Last week saw a rise in the National Living Wage (NLW) and National Minimum Wage (NMW) which is the minimum to which employers must pay their employees for working. It serves as an important reminder for your organisation to ensure that your employees are being paid the correct wage for all work they undertake.
In the care sector, it is common for employees to undertake ‘sleep-in’ shifts or to be on call throughout the night due to the nature of the services provided. Some organisations pay employees a set rate for such shifts (i.e. one-off on call payments) which may not comply with the NMW if the time spent on-call/sleep in is deemed to be “time work”.
The Government guidance states that being ‘at work and under certain work-related responsibilities even when workers are allowed to sleep (whether or not a place to sleep is provided) constitutes working time for the purposes of national minimum wage”, but it is not that simple!
The complexities arise because of the wording of the National Minimum Wage Regulations which define, in particular, time and salaried hours work. The exceptions in the regulations relating to sleep ins/being at home are pretty much identical whether it is time work or salaried hours work. In particular, the regulations say, for either time or salaried work:-
“Work includes time when a worker is available, and required to be available, at or near a place of work for the purposes of working unless the worker’s home is at or near the place of work and the time is time the worker is entitled to spend at home”
“In relation to a worker who by arrangement sleeps at or near a place of work and is provided with suitable facilities for sleeping, time during the hours he is permitted to use those facilities for the purpose of sleeping shall only be treated as being salaried/time hours work when the worker is awake for the purpose of working”
The interpretation of the above and application to various sleep in scenarios has come before the courts on numerous occasions in recent years and the courts have differentiated between simply being provided with sleeping facilities but not being required to work, to requiring an employee to remain on site throughout the night - especially where having a presence is a statutory requirement.
Recent cases, as shown below, demonstrate that the issue of whether sleep-ins attract the NMW for every hour of the sleep-in it is highly fact sensitive and will depend on the circumstances of each case.
If you are not interested in the case law below, skip to the end of this blog to understand how this case law may affect your business/sleep in requirements.
- Whittlestone v BJP Home Support Ltd 2013 - Where a care worker was required to remain at the property between the hours of 11pm and 7am but was permitted to sleep and was provided with a camp bed at the home of young service users with disabilities. Evidence presented at court confirmed that the employee would have been disciplined had she left the premises at any stage for any reason between 11pm and 7am. Because of this “mandatory “ requirement to remain on the premises, it was held the time she spent asleep between 11pm and 7am was “time work” and that the NMW should be paid for each hour.
- Esparon (t/a Middle West Residential care Home ) v Slavikovska - Involved a care worker on a sleep shift was entitled to the NMW because it was a statutory requirement to have a suitable person present at all times for emergencies. The indicator, in this case, was that the employee had to be there, regardless of whether any duties were carried out or not.
- Wray v JW Lees and Co Brewers – Involved a pub manager who was given sleeping facilities above the pub. She was required to sleep there as a security measure but was permitted to leave the premises at any time. There was no mandatory requirement to stay on the premises at all times, merely to occupy and so this was not time work and no entitlement to the NMW.
- Shannon v Rampersad (t/a Clifton House Residential Care Home 2015 - Here the employee was an on-call night care assistant and was provided with free accommodation as part of his role. He was required to stay in a “studio” from 10pm until 7am and was permitted to sleep during those hours but had to respond to any requests for assistance. He made a claim in the tribunal to be paid the NMW for the full hours that he was on-call. It was held that on the basis that there was another employee on site at the same time he was not required to be present to fulfil a statutory obligation and so was not deemed to be working and the issue fell within “working at home” and if not under the carve out for “sleeping at work with sleeping facilitated provided”.
In my view, whilst these cases are particularly fact-sensitive, and whilst Shannon is undoubtedly close to the line, the Judge’s decision is out of step with the other similar cases.
In Wray v JW Lees & Co (Brewers) Ltd and Esparon v Slavikovska ICR 1037, an important distinction between the “working” and “available to work” cases was held to be whether the employee had a responsibility (in the latter case, fulfilling the employer’s statutory obligation) for people on the premises or not.
In Whittlestone v BJP Home Support Ltd decisive emphasis was placed on provisions of the contract requiring the employees to be at a specified place or very nearby during specified contractual hours, all of which fell to be paid at the NMW rate. All of those positive features were present in Shannon, and it is not entirely clear why the Judge took the view that the claim fell on the other side of the line but perhaps the key reason was because the accommodation the Studio was Mr Shannon’s home. This was not the case in most of the other residential home claims.
This case is a good illustration of just how fact – and tribunal – sensitive these issues are.
So what does this mean for your business?
We have identified below different situations which may arise in the care sector, and look at whether each circumstance gives rise to the requirement to pay NMW for the entire period.
Sleeping Shift at a Service Users Home
If you're employing a worker to be present at a service user’s home and their main or only duty during that shift is just to be present, whether they are required to do anything other than sleep or not, then this would be counted as working time for the purposes of NWM. The case of Whittlestone v BIP Home Support Ltd was centred on this scenario.
Sleeping Shift at a Care Home or Residential Home
Similarly to the above, if the worker is being employed simply to be present, to maintain minimum staffing levels for example, then it is likely that the shift will again be considered as working time, regardless of whether the worker was woken up during that shift or was able to sleep throughout.
Being 'On Call' at the employees own home
If a worker is permitted to go home, but remains ‘on call’ for a defined period ie evening or all night, then they will only be entitled to be paid NWM for the period of time where they are actually working i.e called to a service user’s home. This is because during the period of time the worker is not responding to a call, they are permitted to go about their own activities as they wish. This can be contrasted to the above two situations where the worker must remain at the service users home or residential home and if they were to leave they would be disciplined.
Being 'On Call' at the employer's premises where the employer provides sleeping accommodation
Although the worker is not at their own home but at your premises, they are only “on call” overnight. The time spent asleep or awake but not for working purposes, is not considered to be working time so only the time spent actually working would attract NMW. This is subject to the exception where the worker's presence on-site is mandatory (and they cannot leave site) to fulfill a statutory requirement in which case recent cases have suggested this is “time work”.
If you are unsure on any scenario you have then you should seek specialist advice because the consequences of getting it wrong can have huge financial impacts on your organisation.
*All information is correct at the time of publishing