Many care homes engage workers to sleep overnight so as to satisfy legal obligations and since, in most cases, all the carer needs to do is sleep this has typically attracted a small payment such as £25 per night. The carer would only need to be paid the National Minimum Wage (NMW) if they actually did some work during the night. Reportedly, some workers rely on working sleep-overs, effectively for board and lodging, while doing other jobs during the day. But that will have to change.
Recent legal cases including one that reached the Employment Appeal Tribunal in May this year have indicated that this practice does not meet NMW standards. In one case a judge observed that a “sleep over” was working time (and hence needed to be paid the NMW) because the worker could not “slip out for a late night movie or for fish and chips”. Cynically, one might suggest that if the worker was provided with a DVD player and could order a take-away then the NMW would not need to apply!
Act now, reduce risk
More realistically care homes need to come to terms with this interpretation of the law. You would be wise to do so sooner rather than later. The potential for many years’ back-pay, if a case were to be brought against you, exists. It could be crippling. By acting now care homes reduce that risk substantially, although you cannot entirely eliminate it.
So the answer is to stop sleep-overs and instead re-organise so some work (cleaning, preparation, etc.) that is currently done during the day can be done over night. In theory the cost of doing so should be neutral. In practice it may be necessary to pay a small premium. But you should be getting good work done in return and the premium to be paid would not need to be £25 per night. The only losers will be those who rely on sleep-overs for board and lodging!
Malcolm Martin of Employer Solutions – QCS Expert Human Resources Contributor
