The National Minimum Wage (NMW) is not payable for the entire period when a worker is sleeping during a night shift. The Supreme Court has recently handed down its judgment confirming this position, providing some much needed clarity on the issue.
In this case the Claimant was regularly required to do a “sleep-in shift” as part of her role as a care support worker for vulnerable adults. For this she was paid a flat rate of £22.35 plus one hour’s pay of £6.70 which totalled £29.05. While sleeping she was expected to be on standby and take action if necessary. If she responded to a call for help, she was not additionally remunerated for the first hour of assistance but any further time was paid for in full.
The Claimant argued before the Employment Tribunal that the NMW was payable during the hours that she was sleeping but effectively on call. The Employment Tribunal and later the Appeal Tribunal agreed with this approach. The Court of Appeal subsequently disagreed.
In reaching their decision the Supreme Court paid close attention to the recommendations of the Low Pay Commission, which supported the lump sum approach to “sleep-in shifts”. They also concluded that the difference between actually working and being available to work was pivotal. Only the hours that a worker is awake and responding when required are to be counted in terms of the NMW Regulations when the worker is on-call overnight and generally asleep.
This judgment will be a great relief to the care industry. These kind of pay arrangements are commonplace in the sector. If the case had been decided the other way many employers were concerned that they would be pushed into insolvency under the burden of this additional cost as well as back-pay. Going forward employers must ensure they are accurately recording time spent working during sleep-in shifts so that workers are compensated appropriately.
If you have any questions on any of the issues mentioned in the above article, please contact Natalia Milne.