Paying a flat rate for sleepovers in the care industry is common practice, but as two recent cases highlight, doing so could be unlawful.
The National Minimum Wage (“NMW”) is not a new concept: it was introduced in 1999 by the National Minimum Wage Act 1998 and the supporting National Minimum Wage Regulations 1999 (“NMWR”). Since then, all employers have been obliged to pay workers the NMW for all “working time”, irrespective of their size.
What amounts to “working time” within the care industry has been a particularly contentious issue, fuelled by the common practice of paying flat rate sums for undertaking “sleepover” shifts.
The NMWR are to blame for much of this controversy, mainly because the NMWR state that workers who are provided with sleeping facilities at their place of work are only entitled to be paid the NMW for the hours that they spend awake, for the purposes of working. Unsurprisingly this has caused some care organisations to interpret this to mean that where care workers are provided with sleeping facilities and are allowed to sleep, they are not entitled to be paid the NMW whilst they are asleep.
I have commented previously about the case of Whittlestone v BJP Home Support Limited in my blog “Should workers be paid to sleep?”. That case illustrated that in certain circumstances being allowed to sleep during sleepover shifts will mean that workers may be entitled to receive the NMW for all sleepover hours, and the recent case of J Esparon t/a Middle West Residential Care Home v Slavikovska further illustrates this point.
In that case, Miss Slavikovska was employed as a care worker whose role involved caring for residents with learning difficulties. As well as working during the day, she was also required to work a number of sleepover shifts and be available for emergency purposes. The sleepover shifts lasted from 9pm until 7am the following morning for which she was paid a flat rate of £25.
The care home relied on the wording of the NMWR and argued that because Miss Slavikovska was provided with sleeping facilities and was allowed to sleep during sleepover shifts, sleepover time did not amount to working time for the purposes of the NMW.
Miss Slovakia on the other hand argued (amongst other things) that she was entitled to be paid the NMW for simply being present at the care home.
The Employment Tribunal (“ET”) agreed with Miss Slavikovska, as did the Employment Appeal Tribunal (“EAT”).
Whilst there was a dispute about whether Miss Slavikovska was allowed to sleep during the sleepover shift, the Tribunals weren’t overly concerned about this. Instead, the outcome of this case turned on the issue of why Miss Slavikovska was required to complete sleepover shifts at all. The ET and EAT accepted that the care home was legally obliged to ensure that it had a person with Miss Slavikovska’s qualifications resident at the care home all times and that Miss Slavikovska was paid to satisfy this requirement. It was therefore decided that Miss Slavikovska’s mere presence at the home was enough to constitute working time for NMW purposes.
Both cases clearly have significant implications for care sector employers who often have a legal obligation to ensure that suitably qualified staff are present at the care home and/or at service users’ premises, at all times. As these cases demonstrate, the prevalence of this duty and/or restrictions being placed on a workers’ activities during sleepover hours will be powerful indicators that the NMW should be paid for all sleepover hours, regardless of whether the worker is allowed to and actually does sleep during a sleepover shift. The position may be different, however, if the employee in question lives on the premises.
Failing to pay the NMW where it is properly due exposes employers to significant legal, financial and reputational risk. Careful thought therefore needs to be given to why a worker is sleeping over in the first place and what restrictions are placed on the workers’ activities during sleepover hours.