NMW and sleepover shifts

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earning money while they sleep?

February 2014

Are employees who are able to sleep during their shift entitled to be paid the National Minimum Wage (NMW) for the whole shift, or only hours spent awake and working? Confusion can arise, particularly in the care sector.

The Employment Appeal Tribunal (EAT) has recently provided guidance. Mrs Whittlestone was paid above the NMW for time she spent providing care at the homes of service users between 7.00 a.m. and 10.00 p.m. She was also paid £40 per week to undertake sleepover shifts from 11.00 p.m. to 7.00 a.m. to provide potential physical care to three young adults in their homes. Although she regularly undertook sleepover shifts, there was no evidence that she ever woke to provide specific care. Mrs Whittlestone's work fell within the scope of ‘time work’ under the NMW Regulations 1999, i.e. work paid for by reference to the time for which an employee works, for example, hourly paid work. Mrs Whittlestone argued that this applied to both the day shifts and the sleepover shifts.

In this case, the EAT ruled that the work carried out by Mrs Whittlestone during the sleepover shift was 'time work' even if she was sleeping and not carrying out any activity, and she was entitled to be paid the NMW for the whole shift.  It took into account that Mrs Whittlestone would have been disciplined if she had not been present throughout. She could not 'slip out for a late night movie or for fish and chips’. The fact that her physical services were not called on during the night was irrelevant since her job was to be there – she was not just ‘available’.

Each case will be fact specific and it will be important to examine the purpose of the employee's presence at a particular location. Is the employee merely available to work, or is he required to be present and at the employer's disposal?

being present is part of the work

It will normally be 'time work' where specific hours at a particular place are required, during which the worker is at the employer's disposal, with a risk of disciplinary action if they are not spent at that place.

For example, a night sleeper in a residential care home who sleeps throughout much of the night is entitled to the NMW for that period if he is required to deal with anything that might arise during the course of the shift, even if actual tasks only come up intermittently or infrequently.

requirement is only to be available for work

It is unlikely to be 'time work' where a requirement is imposed on an employee to live at or near a particular place, but it is not necessary for that employee to spend designated hours there for the performance of their duties. The employee's presence facilitates work but is not itself work.

For example, an employee is provided with sleeping accommodation and is ‘on call’ because he is required to be at or near his place of work and available to work. If that employee went out, he would not be disciplined as long as he remained available to attend work if called on. In that case, the employee can only claim NMW for such hours as he is awake.

impact

This decision could have far-reaching implications, particularly for the care sector at a time when Government cuts are already seeing the sector's resources significantly stretched. Failure to pay the NMW can lead to Employment Tribunal claims or penalties from Her Majesty’s Revenue and Customs (HMRC) which are due to be increased from this month.

NB: This case involved 'time work', but in cases of 'unmeasured work' (as might apply, for example, in the case of a live-in carer), difficulties can arise in calculating the employee's working hours. One solution can be to enter into a 'daily average agreement' with the employee, setting out the average hours that the employee is likely to spend working each day. Please contact your Vigil adviser for further information.

Case: Whittlestone v BJP Home Support Ltd.