Following on from the success of a previous popular blog on employer’s obligations to sleeping employees and whether it is permissible to pay a flat rate for sleep overs, this blog brings you the very latest on the issue.
The Department for Business, Innovation and Skills (BIS) has recently updated their guidance on the National Minimum Wage (NMW) for workers who sleep between duties. In our previous blog we commented on the cases of Whittlestone v BJP Home Support Limited and J Esparon t/a Middle West Residential Care Home v Slavikovska which illustrated that in certain circumstances being allowed to sleep during sleepover shifts will mean that workers may still be entitled to receive the NMW.
The Guidance has confirmed that entitlement to the NMW depends on the arrangement the worker has with his or her employer. A worker, who is considered to be “working”, even if they are asleep, is entitled to the NMW for the entire time they are at work. This may include instances where there is a statutory requirement for the worker to be present on the premises or they would face disciplinary action if they left the workplace.
Whittlestone and J Esparon involved employers in the care sector where there is often a legal duty to ensure qualified staff are present at the care home or at service users’ premises, at all times. The cases demonstrate that the Tribunals considered this duty as well as restrictions placed on a worker’s activities during sleepover hours to 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 BIS Guidance reiterates the points made in both cases and has stated that “employers must ascertain whether a worker is still subject to certain work-related responsibilities whilst asleep, to the extent that they could be deemed to be ‘working’”.
The Guidance takes a different position on situations where a worker is only available for work (effectively ‘on-call’) and is permitted to sleep and suitable sleeping facilities are provided at the workplace. In these situations, the individual will not be ‘working’ and NMW will not be payable. However, NMW must be paid for any time spent awake for the purpose of working. Again, this scenario will depend on the type of work and the obligations which the worker has when they are asleep.
The Guidance provides two useful examples that demonstrate where the NMW is likely to apply:
“Example 1 – where the NMW is likely to apply:
“A person works in a care home and is required to work overnight shifts where they sleep on the premises. The person’s employer is required by statute to have someone on the premises for health and safety purposes. The person would be disciplined if they left the premises at any stage during the night. It is likely that the person would be considered to be ‘working’ for the whole of the overnight shift even when they are sleeping.
Example 2 – where the NMW is unlikely to apply:
“A person works in a pub and lives in a flat above the pub. The employer requires the person to sleep there. However the person can come and go as they please during the night as long as they do sleep there. There are no specific responsibilities during the evening rather the person sleeps there so the flat is occupied i.e to reduce the likelihood of the premises being burgled. The person is likely only to be entitled to the NMW when they are awake and dealing with any emergencies in the night.”
Whilst the Guidance does not have any statutory effect it could be persuasive for Employment Tribunals deciding these issues and therefore employers who employ people to sleep as part of their job should familiarise themselves with it and make an assessment of whether the NMW should be paid. The Guidance can be read here.
With potentially large arrears of pay developing over time and enforcement by HMRC leading to fines of up to £20,000 for each employee not paid the correct wage there are numerous good reasons for employers to ensure that they comply with the law.