This is essentially the principle that came out of the case of Whittlestone v BJP Home Support Limited.
In this case, Mrs Whittlestone was employed as a care worker. She was paid £6.35 per hour for all time that she spent providing care to a service user. She also undertook sleepover shifts, during which she was required to be present at a service user’s home between the hours of 11pm and 7am. During sleepovers Mrs Whittlestone was provided with a bed and was permitted to sleep if her services weren’t needed by the service user. She was paid a flat rate of £40 for sleepovers. There was no evidence that Mrs Whittlestone ever woke from her sleep during a sleepover shift to provide care.
Mrs Whittlestone claimed that she should be paid the National Minimum Wage (“NMW”) for all hours worked, including sleepover hours. The Employment Appeal Tribunal (“EAT”) agreed.
The EAT held that the entire sleepover shift was “working time” for the purposes of the National Minimum Wage Regulations 1999. The EAT observed that there was an agreement in place with the care provider that the employee would work and that had Mrs Whittlestone not been present at any time during a sleepover shift, she would have been disciplined.
In these circumstances, the EAT observed that it did not matter whether Mrs Whittlestone was asleep or actually performing duties during sleepover hours. The key point was that it was her job to be at the service user’s home and for that reason, Mrs Whittlestone was entitled to be paid the NMW for the duration of her shift.
This case can be distinguished from cases where a worker is “on call” overnight. Where a worker is “on call” and the night-time work is not the essential nature of the worker’s job, any time spent not actually responding to a call (ie sleep )is usually regarded as “non-working time” for which they are not entitled to be paid. During this time the worker is at liberty to go about their activities as they wish (including sleeping) and will only be entitled to be paid where time is actually spent responding to a “call”. The key difference then between such “on call” working and Mrs Whittlestone’s case, which was emphasised by the EAT, is the fact that Mrs Whittlestone’s duty during the sleepover shift was to be physically present at the service user’s home. Her activities during sleepover hours were limited and in the words of the Judge, Mrs Whittlestone was not able to “slip out for a late night movie or fish and chips”.
This is not to say that the practice of paying flat rate for sleepovers is wrong. Indeed, it is commonplace within the care industry. However, if carers are paid little more than the NMW for non-sleepover hours worked, paying a low flat rate for long sleepovers may result in them being paid less than the NMW.
This decision is likely to affect many residential care workers across the country and is not a welcome decision for care providers. Whilst it is accepted that there is already significant financial pressures placed upon care providers who will no doubt find it difficult to withstand a pay increase for its staff, these factors will not provide a defence for flouting the NMW. Given the recent announcement of an increase in the maximum penalty for failing to pay the NMW (it is expected to increase from £5,000 to £20,000) and the new policy of naming and shaming businesses that breach their obligations, it is therefore more important than ever for care providers to review and possibly change working practices to make sure they don’t fall foul of the law.