The Employment Law Blog

Paying a flat rate for sleepovers may be unlawful

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.

18 thoughts on “Paying a flat rate for sleepovers may be unlawful

  1. Hi I think flat rate payment should cease immediately. If u are a professional it is hard to switch off when in care of someone so during the night is no different. I am a care worker very unfair

  2. I am a support worker working in supposedly supported living I have been made to work 15hr days plus sleep in then a morning shift besides working 10 days in a row before I have my days off . I got paid a measly £26.50 for these sleep ins and in the end because I couldn’t sleep it led to me having ill health and nearly a break down

    1. I am a support worker and do sleepovers also £27.86 per sleepover. My company had to back pay us from April 2015. Our hourly rate for normal hours is £7.80 and then the flat rate of £27.86 is paid between 11pm and 7am. They worked out our back pay by taking our gross pay per month..adding our contracted hours + any overtime + sleepover hours ( e.g. 7 sleepovers would = 56 hours)….totalled up all the hours and then divided it into our gross pay…if the rate was over the national minimum wage then we did not get any top up ….some people got back pays of over £500 and some got nearly £200……I have one of the biggest contracted hours and I got £1.52 ??? When I queried it they decided they had made a mistake and INFACT I should have received £24.66 !!!!! Some of the work force got NOTHING at all. I got a an e mail sent to me showing me how they worked out my back pay as I ask for an explanation and basically some people said it is really so very wrong.
      Anyone else like to comment on how back pay should be worked out ??

  3. I work for a multimillion company who pay £25.75 per sleep in. I think we should all strike like the nurses and junior doctors ??? this would be the only way to make these so called ‘Care companies’ to sit up and listen and pay a decent hourly rate. Most of us carers I never really liked Unions and the disruption they caused, but I have totally changed my mind!! I am a member of Unison and I would urge you passionate carers like me to join. I love my job and have been with the same company for twenty years,,, not because of the terms and conditions of my contract, but because I care.

  4. i work on a 40 hour weekly contract at £7.40 per hour which consists of 10am-10pm with a sleepover from 10pm -8am which is paid at the flat rate of £26.50 then work from 8am -10am then i go home returning possibly thr next day. my payment for each shift is £130.10 which over the 24 hour period works out at £5.42 well below the NMW.
    Something need to be in place to stop companies paying the amount for a 24 hour shift.

  5. I have just read ur email back pay was just given last wk to some support workers not all again it was explained that we add up all hour worked counting sleep hours multiply but NLW but I get a higher rate than living wage so why is my hourly rate considered and not just sleep hours ? It doesnt make sense as your ment to benefit from this legislation but im not seeing it !!

  6. I work in a semi secure unit, and do sleeps, initially for agency, not only 30p over the pathetic living wage!!!! mmm but 25 pounds per sleep paid by agency, the company pay own staff 40 pounds per sleep so why are these agencies not paying as per the legislation change. what were paid is a joke, and the agency make as much as we do from us. I was on £11.30 6 years ago, support work with homeless teens, now working with Psychiatric patients I get a pathetic 7.50 I wanted to work for myself as a therapist, well that just cost me thousands of pounds,

  7. I’m confused with the changes – I work 39hours per week (waken hours) and now cover within the hours 2 sleepovers from 10.30 to 7.30 (9hrs) so basic I work 39hrs + 18hrs = 57hrs per week
    What I don’t understand is how they work out my wages now – I earn a hourly rate of £8.70 for my 39hrs then I was paid a allowance of £35 per sleepover – now people are saying about minimum wage of £7.20 – and employees can take all your hours worked and sleepover – and as long as they don’t fall below the minimum wage – this is okay ? is this correct?

  8. I’m a support worker and since the nmw has been introduced for sleepovers I’m worse off as my contacted pay is above nmw and my working hours have been averaged out to cover the increase. Sleepovers are hard enough without this. I have been discriminated against because I do sleepovers and earn less an hour than my colleagues who don’t do sleepovers. This can’t be right surely.

  9. Im a support worker doing 40 hrs a week at 7.35 ph and sleep over allowance is 25 pound a sleep , we have still not been getting the hourly night rate, countless emails to payroll, managers area manager, HR staff , still getting fobbed off with excuses that its down to local authority to pay it

  10. IN MY RESIDENTIAL HOME WE WORK LATE SLEEP EARLIES GET MINIMUM WAGE FOR THE SLEEP WE GET 20 PONDS WE ARE AT THE WORK FOR OVER 24HOURS

  11. Company I work for have been paying nmw for skeep overs for past year. I don’t understand how other companies are getying away with not paying this I believe it’s law so therfore they are breaking it

  12. hi I’m a support worker doing on average 10 sleep ins per month I’m seeing other companies increasing there sleep in wages but ours seems to be holding out will I be entitled to back pay or even a fare wage as managers seem to have no information to give us and a number of staff are becoming concerned

  13. As a support worker for a very large company,my hourly rate for a 37hour contact is just over £8.00, an hour as my contract states,also on my wage slip.
    However this month the company paid the NMW for sleep ins,this means I am being paid less than my contract hourly rate…………is this right………..Is there anything I can do,use the small claims court.
    Sadly a very angry,and dissatisfied support worker.

  14. I work in a children’s home and have to do sleepover duties the children have door alarms and we have to get up to tend to them even if they are just using the bathroom. I am on 8.30 per hour and 26.50 per sleep in duty (11pm-7am) every now and again I will get a little extra in my wage that says NW yet all the staff who are on the minimum wage have larger NW payments more often than not putting them on more monies per shift than what I get. I have a feeling the company is taking money from my hourly rate to make up for the minimum wage payment through the night. I find this hard as I have worked for g his company for 12 years and new starters are on more money than me. I have tried to discuss this in my supervisions to no avail I’m still none the wiser. Any information would be helpful.

  15. Just came across your website by mistake and it’s highly informative.I work as a live in carer at a flat rate so it means in some cases I am paid less than £3 a hour.it opened my eyes and I hope I will have the courage to persue this issue and get paid fairly for looking after someone for 24/7

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