National Minimum Wage and Sleeping Shifts
Regulation 15 of the National Minimum Wage Regulations provides that where a worker who sleeps by arrangement at or near a place of work and is provided with suitable facilities for sleeping, time during the hours they are permitted to use those facilities for the purpose of sleeping shall only be treated as being time work when the worker is awake for the purpose of working.
The Employment Appeal Tribunal was asked to consider in the case of Esperon t/a as Middle West Residential Care Home -v- Slavkovska, whether the Claimant was carrying out time work when she was asked to be available to work whilst sleeping at the home.
The Claimant, a care worker, was required to work a number of sleeping night shifts and be available for emergency purposes. There are statutory provisions that require the Respondent to ensure that at all times suitably qualified, competent and experienced persons are working at the care home. The specific requirements are set out in the Care Homes Regulations which provides:
18. (1) The registered person shall, having regard to the size of the care home, the statement of purpose and the number and needs of service users-
(a) ensure that at all times suitably qualified, competent and experienced persons are working at the care home in such numbers as are appropriate for the health and welfare of service users…"
The Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 also provides:
"In order to safeguard the health, safety and welfare of service users, the registered person must take appropriate steps to ensure that, at all times, there are sufficient numbers of suitably qualified, skilled and experienced persons employed for the purposes of carrying on the regulated activity."
The Claimant maintained she was required to carry out certain duties during the night shift whereas the Respondent maintained she was not required to carry out any duties save in case of emergencies in the facilities provided. The Claimant received a lump sum for each sleeping shift, but this was at a rate substantially less than the hourly rate of the national minimum wage. The Claimant claimed that she was entitled to be paid the national minimum wage because she was carrying out time work.
The Employment Appeal Tribunal (EAT) held that she was entitled to be paid the National Minimum Wage even if it was just for sleeping in the Respondent’s premises.
In determining this issue the Judge considered why the employer required the employee to be on the premises. The Judge held that the requirement of the employee to be on the premises pursuant to a statutory requirement i.e. to have a suitable person on the premises “just in case” would be a powerful indicator that the employee is being paid to be there regardless of whether the work is actually carried out.
The Employment Appeal Tribunal concluded that the claimant had actually worked during her sleep-in sessions. In any event, she was on the premises owing to the employer’s legal obligation to have staff available at all times. It was essential that she was there even if she did nothing. In effect, she was being paid simply to be present.
In the circumstances, a worker will be deemed to be working and entitled to be paid under the national minimum wage if he or she is required to be present pursuant to a statutory requirement.
Employers should review their contracts of employment for those employees who are required to undertake a sleeping shift and consider why they are required to be present as this will impact on the amount of remuneration they are required to receive.
If you have any questions regarding this article then please do not hesitate in contacting Sejal Raja at the details below.
t: 020 7227 7410
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.