Working time, sleep-ins and the minimum wage

sleep at work minimum wage employment law
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When does time spent on a sleep-in at work count as working time for the purposes of minimum wage compliance?

By Danielle Crawford, Associate Solicitor, Employment Law, Winckworth Sherwood

Sleep-in at work arrangements generally fall within one of the following categories:

  1. Where a worker is permitted to sleep at work but is obliged to be present on the work premises at all times. For example, a care worker.
  2. Where a worker is provided with sleeping facilities by their employer.  For example, a pub manager.
  3. Where a worker is available for work but not actually working (“on call”). For example, an out-of-hours doctor.
National Minimum Wage (“NMW”)/National Living Wage (“NLW”)

The legislation governing the NMW/NLW is contained in the National Minimum Wage Act 1998 (“the Act”), The National Minimum Wage Regulations 2015 (the Regulations”), and The National Minimum Wage (Amendment) Regulations 2016.

There are currently five NMW/NLW rates ranging between £3.30 per hour (for apprentices) and £7.20 per hour (for workers aged 25 and over).

In order to establish whether workers have been paid the NMW/NLW, employers will need to calculate their average hourly rate. This is done by dividing the worker’s total remuneration by the total number of hours they worked during a pay reference period.

However, calculating the number of hours worked and the worker’s total remuneration can be complicated, especially where workers are permitted to sleep on the job.

 Workers who are permitted to sleep at work but cannot leave the premises 

In November 2013, the Employment Appeal Tribunal (“EAT”) handed down an important judgement in the case of Whittlestone v BJP Home Support Limited.  The facts of Whittlestone are briefly as follows:

Ms Whittlestone was employed to provide care for vulnerable adults. In addition to her usual daytime duties, Ms Whittlestone also agreed to regularly stay overnight at the home of three vulnerable adults (the “sleepover shift”).

Each sleepover shift lasted approximately eight hours and Ms Whittlestone was required to stay on the premises for the entire duration of the sleepover shifts.  Ms Whittlestone was provided with a camp bed and was permitted to sleep through the shift unless her assistance was required.  Ms Whittlestone was paid a fixed fee for each sleepover shift.

Ms Whittlestone brought a claim in the Employment Tribunal (the “ET”) against her former employer arguing that she was entitled to NMW during the sleepover shifts.  The ET held that the time Ms Whittlestone spent sleeping could not be considered working time for NMW purposes.

On appeal, the EAT held that Ms Whittlestone was carrying out time work during the sleepover shifts and that her level of activity during these shifts was irrelevant.  The EAT also noted that  the ET had failed to consider the fact that Ms Whittlestone was required to be present on the premises at all times during her sleepover shifts and that she would face disciplinary action if, for example, she “slipped out to watch a late night movie”.

This approach was affirmed in the case of Esparon T/A Middle West Residential Care Home v Slavikovska

Workers Provided with Sleep Facilities

Prior to the Whittlestone and Esparon cases, there was widespread uncertainty as to whether NMW was payable during periods workers slept at work. This is principally because under the Regulations (and  previous legislation), if a worker is provided with sleep facilities, only hours “the worker is awake for the purposes of working” will be counted as working time.

If a worker is provided with sleep facilities, it is therefore important to determine whether they are working or simply available for work.  This question was considered by the EAT in the recent case of Shannon v Rampersad & Rampersad T/A Clifton House Residential Home. In this case, Mr Shannon was required to remain on the employer’s premises whilst “on call”. However, importantly, he also lived at the employer’s premises.  The EAT held that Mr Shannon was only entitled to the NMW for periods during which he was awake and actually working.

Shannon can be distinguished from Whittlestone because Mr Shannon was not working by merely being at his place of work. Further, as he lived on the premises, he was at his home during the periods he was “on call”.

It is also worth noting that accommodation provided by employers between jobs will not be counted as working time for the purpose of the Regulations.

Workers “On Call”

If a worker is “on call” and required to remain at or near the workplace but not provided with sleeping facilities (for example, a night watchman), the whole time they are “on call” will usually be counted as working time for the purpose of the Regulations.

However, if a worker is entitled to be at home whilst “on call” and their home is at or near the workplace, only time spent carrying out actual work (and not the whole period they are simply available to work) will be considered as working time the purpose of the Regulations.

Summary

The critical question to determine whether the NMW/NLW is payable for time spent on a “sleep-in” at work is whether the job requires the worker to be physically present at a specific location which is not their home.  However this area of law is notoriously complex and very much will depend on the facts of each case.

As breaches of the NMW/NLW legislation can lead to severe penalties and reputational damage, it is always worth seeking specific legal advice.

9 COMMENTS

  1. I get 7.65 per hr im awake and 30 pound sleep in they top my money up to minimum wage for the full 14 hrs that im there is this correct as when i do days they onley pay out to minimum wage the girls who work days with me gets 7.65 i feel as though im penalised for working nights.

  2. Susan, I have heard contradictory reports on back payments. One of my work colleagues knows somebody who has claimed back £6000 for sleep ins at work. I raised this with my manager today who told me that the backpayments would only go back to April of this year. I really hope you can claim back payments as I’ve been doing this job for four and a half years.

  3. I work in IT support. We get a flat rate for working on-call overnight, weekends and bank holidays, whereby we carry a pager and are required to respond to client emergencies (e.g. server crash) out of hours – very occasionally we need to go into the office to do something but usually it can be done remotely from home. However, whilst it does mean that we can be at home, we can’t get drunk, go out, etc. Going to sleep is fine as the pager is really loud and always wakes us up! The on-call rota means we do it 1 week in 4, but we also do various out of hours work on top (e.g. releases, upgrades and installations), for which we get TOIL rather than extra payment. Should we be getting paid at least the NMW for all the time we’re on-call or can our employer only pay us a flat rate? Also, should we be paid for when we are actually called out and required to do some work out of hours whilst on-call (even though this usually can be done at home)? We’re salaried and paid monthly if that helps.

  4. Who do you claim off?I only heard abut this yesterday and was told you can only claim back 6 years but as time is running out ,I think a lot of people will want this sorted. .I finished in care 4 years ago

  5. will the law ever change for workers who work in the private care sector, the company that i work for will not pay minimum wage for a sleep until it becomes the law.
    so i get paid £30.00 for a 10 hour sleep i cannot leave the building and i must get up when needed to do so. i am on £3.00 per hour this is not the minimum wage.
    All we ever hear is how the public sector is being treat, they do not know they are born. I have worked in the public sector and now the private and i know which one is treat better with more respect,and a lot more money.Rant over for now

  6. mr ellis ring acas and follow their tribunal guidance it is law and has been for some time I got 4500 back dated for 2 years your company will pay they are just trying it on the government is fining companies 20000 for not paying it

  7. Why arent unions sorting this out for staff who cover sleep in shifts? This new legislation just seems to be being swept under the carpet by some services its been brought up a few times in service I work in but nothing much appears to be happening.
    I was under the impression that sleep in payments were to be replaced by an hourly rate of at least minimum wage/

  8. I am an employer (small care home). To be very honest I knew nothing about this until today when a member of staff asked me about it. I started searching the internet for answers. After reading 3 versions I am none the wiser. I get an average client fees of £500 per week. we have 4 clients. If I have to pay waking hours or worst still back pay for years, I will go bust. I provide a proper sleep-in bedroom and my staff never get up at night. Sad for many people if I have to get out of this business altogether after a lifetime of caring.

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