The Employment Law Blog

Paid to sleep: Should workers be paid to sleep?

This is essentially the principle that came out of the case of Whittlestone v BJP Home Support Limited.

The Case

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 findings

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.

For further information please contact a member of our team by calling (0114) 218 4000 or email

**Updated 10/03/2017**

38 thoughts on “Paid to sleep: Should workers be paid to sleep?

  1. Do you know if this ludicrous ruling has been appealed? In times of such austerity how can an intelligent person pass such a ruling? Millions in expenditure for zero improvement in care. It makes no sense whatsoever.

    1. Danielle Dare, thank you for your well thought out comment. I am sure that the thousands of care workers who work at minimum wage or just above would welcome your comment above too.

      Clearly it is far more important for the care company Shareholders, Stakeholders, Directors and Management Teams to continue to take their exordinate salaries at the cost of the standard of living of those who work for them. It is clearly fine for their expectations to be that their workers should look after people for the goodness of their hearts for a reduced salary but not for them.

      Finally, it is also important to note in your well thought out response, that the standard of care would clearly not improve with improved salaries for careworkers. Hiring people at the lowest possible amount of money to look after the nations elderly and individuals relatives is clearly the preferrential option. Those people will in no way feel disenfranchised and therefore perform their duties far below the standards that are expected.

      P.S. If you would like further details on my post, please feel free to use this link.

    2. It makes sense for the worker’s who are in the confinements of the workplace for hours that are not being recognised in their hourly rate. If 3 sleeps per week are necessary that is 64.5 hours per week actually spent in the workplace to be paid for 37.5 and £76 flat rate for the excess! That’s £319.75 for a 64.5 hour week…. £4.96 ph !!!!!

    3. Maybe the people providing the high qualtiy care have been grossly under paid to begin with. I know I give a good service for poor money with no pay rise for the past 5yrs. My bill have not gone down. I know benefit payments to the clients have gone up each year!

  2. Aside from that, I would like to congratulate all those involved with this case. A great win.

  3. Lovely replies there from so may really ill informed people.

    Grab a calculator and do the maths!

    Three people living in a small care home where the weekly fee is set by the council at £458 per week. They each require 24 hour care 7 days a week and the council refuse to pay a single penny more.

    Where are these big salaries and large profits you speak of.

    Its electric and food I’m trying to find not profit.

    In October the wage for one staff member on duty with a 30 minute overlap and statutory holidays and no management hours or sick pay for even one shift pretty much takes every penny of income.

    Where do I find heat, light, food, insurance, repairs etc etc need I go on.

  4. It’s not right that these people who do such good get paid so little. If we could see how much they help and how much care they provide, then I’m sure we would all agree not to pay them at or even less than the minimum wage.

  5. Everyone is squeezed….Im a retired nurse and would love to run a care business but I have done the maths and I cant see how I can make it pay and better to work in the security industry for £8.60 an hour.
    My better half works in care and she gets a few coppers over the minimum wage for providing care to learning difficulties clients who are very demanding and often very violent.
    The sad truth is that the Govt both local and national do it competitively and cheap.
    Not enough margin for some “businesses” to make a profit and pay all its managers and its difficult for “sole traders” to get the same funding as would be paid to a company.
    Society has to pay enough to fund good quality care…if you dont… well when your 90 and sitting in your own excrement because you didnt vote for fair wages to keep good staff just think back to this blog. The way out is not to exploit the low paid.
    Great work for the legislation. Its a very small help but a help.

  6. We pay a mechanic at least £40 an hour to take care of our car .
    We pay a hairdresser £20 for 30 mins to cut our hair
    We pay our carers £6.50 an hour to look after the most important people in the world to us our family,
    its about time the government woke up and took notice of the work we do the compassion we show and the dedication we provide .

  7. Well said Lynn. It’s about time a bit of appreciation is shown for the work we do. I’m sure Mr Cameron wouldn’t be bothered either way though as he has the money to do whatever..whenever. We need to speak up for ourselves because nobody else will!

  8. If you work full time and then have to do 2 sleep overs a week which in my case is another 16hrs added on to your nomal hrs the pay comes to £51.36p, how many people would want to be out of there homes for that sort of pay, not many idiots about.

  9. The company im employed by actually pays a flat fee of £25.68 between the hours of 10 pm and 7 am. The client’s i support don’t go to bed until midnight and awake again around 6 am, also very often there are disturbances throughout the night from the clients waking and calling for something. I work 37.5 hours per week but am actually in the work place 55.5 hours this does not seem fair, i am not at liberty to refuse to do the nights as it’s in my contact.

  10. This debate has gone on for years and still nothing improves for care workers. Tell me then why do we need care workers? Shouldn’t we be caring for our own elderly and vulnerable family members.Oh horror of horrors NO.. because if we are honest its not an easy job. We don’t want to do it!!
    Okay so we will employ care and support workers to do it for us but treat them like our domestic servants.After all care work is easy compared to our work.. yeah.. sitting in front of a screen all day, cutting hair, counting money or getting glammed up to go on TV, dribbling a football around a field, designing a new computer game, these things we all do are far more important!! ! Dealing with our precious family members, well being, diseases, bodily function, big nappies, sometimes aggressive behaviour, nakedness, smelly bodies, open wounds, swollen legs, tube feeding, sputum, hoists, cooking, cleaning, getting up at night because they need the toilet for the 6th time but cant go alone … you can see what I’m getting at …. these things are easy. Care staff only deserve to be paid peanuts then we can make profits for our shareholders ! After all that what’s important in our society, profit!! Its a disgrace we get the care we deserve.Quality care staff will not stick around for long. They need to pay their bills the same as the rest of us. That’s why your loved one had 100 or more care staff through the door this year!! Don’t even get me started on Social services commissioning departments…..

  11. Good discussion, I am doing sleepovers for a flat rate of 30,45£ from 22pm til 7am, it is, 15 miles away from home (don´t get paid for petrol), she goes to bed early (around 22:30 or 23:00) but she needs almost all the time go to toilet during the night so by the time i am in bed again 1 hour has gone and then I need to wake up at 6:15 am to help her get up

  12. i am a care worker who cares for a lady 3 times per week from 10pm until 8 am, I am paid £40.00 less tax per night and NI for this, it costs me £4.00 to get to work, I am there so the lady is not alone, no care as yet has been needed during the times of my shift, who would want to be out of their home and their own bed for 30 hours getting paid 4.00 per hour, it’s a total insult to care workers, and well below the National Minimum wage for adults in their 50’s

  13. Hi am a young support worker who has been doing sleepover shift for the past four years. I currently work from 10-a.m. To 11pm with the service user then do a sleepover from 11pm until 10 am.. 3 times a week and for the Sleepover my flat rate is 29£ a night.. we tend to be up once during the sleepover.. I love my job but would i recommend sleepovers work to anyone? No spend more time in the sleepocer bed than in my own & makes me feel like am living out of my sleepover bag most day.. for what a whole 29£ and after tax and nl it doesnt leave alot after factoring in expenices for brealfast lunch and dinner plus coffee and milk we need to provide for the three days were on shift the £29 is already gone

  14. Hi, I have been a support worker for 15 year and two years as team leader, I never had a problem with being paid a flat rate of £32.45 for going to sleep, whenever we got disturbed we were paid hourly rate as well as £32 .45. Be Careful what you wish for, nobody will get paid NMW to sleep, if NMW is being paid it will be to work thus no more sleep in’s no more 32.45 extra, to earn extra money you will have to be awake. We should be fighting for a better standard of pay per hour. There are some companies out there that is all about profit- no values towards people they support, it’s the care staff that provide care, love, security, emotional support all for the right reasons but until NMW is paid by social service/ NHS many companies will be out of business and a lot of support staff will end up working else where probably not in health care losing skills empathy and a whole load of other skill you all have. There will be three shift patterns 9-4 4-11 and 11pm till 9am all awake everyone taking turns to do time on each shift… Is this what is really wanted? Maybe lucky some companies may let you sleep but NHS have 24 hour rota if they are funding won’t they want the same attention? What happens when people we support want holidays abroad and have shared sleep over, do they then pay £72.00 per night, not many people will be doing that. But I do agree our work does need to be recognised, I’m just not sure sleep in’s is whe I want this to be recognised. Ps I think the royal forces are on 12p per hour as they have to be ready on call 24 hours a day and certainly don’t get NMW when fighting for us

  15. I work in supported living house, sleepovers from 11pm-7am, don’t have get up through the night, but only get flat rate £25. But normally still awake midnight writing notes etc. Work normally 30 hours plus a week and 3 sleeps which on total is 54 hours. Which I do because love my job,

  16. Ive been going through this with my solicitor for 2 years.I work alone in two joined house with 4 adults.Sleep in one bungalow over night and often get woken We are paid flat rate £33 for the night but no extra if you are awake….only claim if its over 1hour and first hour is free.No back up even if violent…just told to distance yourself.
    We have on call but they are 39mins away if they answer.
    My company say i am paid above minimum wage but divide all hours even overtime pay complete top line before deductions to work it out.So though im part time 18.25 hours with two sleep ins at 20hrs…im actually a full time worker.This is the issue I am pursuing….this affects my credit and pension.
    Its terrible…have done this job for 15 years or more and earning half what i used to.No pay rise for over 4 yrs now

  17. Hi I’d be interested in the outcome of this because this is what the company i worked for did…used my enhanced hourly pay earnt for weekends etc to fulfil the NMW, our contracts stated we had enhanced pay for unsocial hours but the company actually stole it back to come to the NMW….dreadfull !

  18. I’ve worked for the last 16yrs doing sleepins between 2-3 a week and paid from £10.50 – £25.00 now flat rate . Some houses you are not given a choice of doing these or not doing them it’s in your contract . I do think it should be paid at an hourly rate if it’s part of your contract as you are not given the choice . Let’s face it your company will be making a profit as they will charge maximum rate for these hrs .

  19. A lot of companies pay minimum hourly rate for sleep ins it was law some yrs ago as far as I’m aware

  20. I have been working for two separate independent living disabled people for twenty years. Two years ago my pay was cut from £114 per 24hr shift to £80. The lady I work for said that Social Services would bring in eastern europeans if there were complaints since they can pay them less. I am sure you can all do the math. I spoke with the manger in question and all my question were answered with NO Comment. I thought I was in a police station.

    If government departments can get away with paying less than the MW, yet on their website they say the law is NMW. They are hiding behind disabled people as employers and making them responsible for breaking employment law as they are banking on the care staff not taking their disabled employers to a tribunal. Its shameful but fact.

    I took this to my CAB and local Councillor. My case was brought up at a council meeting and was received with shock but was told it would take baby steps to change whatever that means.

    Are there no Pro Bono employment layers out there to challenge these departments and get a fare wage so care staff like myself and others don’t have to work 5x24hrs a week to be able to pay our own bills.

    If you are a care staff member employed by a disabled person on Direct Payments and getting less than the MW, we should all get together under one banner. I am more than happy to organize this.

  21. None of us do this job for the money, we do it because we are naturally caring people, and that is our downfall. We look after the most vulnerable people in our society, but seem to be the most disrespected workers of all. You’re worth more as a cleaner, not suggesting that cleaning is easy, there is a lot involved in the job I do. I work full time, and because of sleep ins I spend more time at work than I do at home. There is no job more important than the one we do, as important, but not more so, and I can’t believe that there are comments on here suggesting that it’s wrong to expect nmw for the hours we are at work.

  22. This is all great news for cares and it’s about time they are better payed for their valuable input and help in society.
    When does this decision come into force and will the carers be entitled to claim for hour they have worked previously?

  23. Do people seriously believe that if small to medium company’s have to pay the NMW for hours when residential workers are meant to be sleeping, they will still have a job? My organisation provides solo placements for very challenging children & young people and we are funded through payments for placements through the Local Authority. These Local authorities are consistently trying to drive the fees down because of cuts to their funding and this means that although we would like to recompense our staff with higher salaries, it is impossible.
    If we are enforced to pay the NMW to workers who already receive a payment to sleep-in (and overtime pay for any hours they are awake) we will unfortunately not be able to provide the service we do for one of the most vulnerable groups in our society.
    I agree that all care-workers are worthy of higher wages, but the emphasis for change should be placed with government and local authority funding and not passed off to small providers who are trying to provide an essential service. Maybe someone will take notice when these children & young people no longer have anywhere to go?

  24. From experience support workers work very hard for very little pay, if you are not passionate to help then you just wouldn’t do the job. From my own experience what work we do is very demanding. From being a domestic, to giving good support in sometimes very challenging situations, working 3 to 1 safeguarding the user and public. Getting occasional cuts and bruises. Filling in daily logs, giving meds, being responsible for safeguarding knowing one mistake and you could be in prison or tarred for life…working a 14 hour shift and feeling mentally drained all for minimum wage and a 30 pound sleep in payment. Yes the government should help in such things but quotas go out to get a service in a sup non profit organisation. Our service so far has not increased this payment and not sure if they will ever. There is hardly any info about this online merely hear say, our service gave us a trial 8 pound an hour for 2 months which was odd and now back to minimum wage. Perhaps the higher managers should take a cut and give this towards the sleep in increase. For all those that are complaining are you a support worker? Do a few months voluntary if you are concerned.

  25. I work for a care company which is part of a hedge fund which has another 17 companies under its umbrella some of which are not care companies and I read that they were thinking of dropping some non-care companies to bring in more care companies ,no profit in it ?!

  26. I’m interested on people’s opinions on my situation. I employ on behalf of my mother 3 carers who live in her home. I believe we pay them a fair wage. They work what I think are unmeasured hours of 11 hrs per day at a rate of £137, £145 weekends and 1.5 time bank holidays and double at Xmas and New year. They have free accommodation, food, bills, Internet TV and are entitled to holiday sick pay etc as on their contract. Breaks are unmeasured and taken as and when throughout the day. We do require them to sleep there. They swap over after 3 or 4 days and rotate and move out. Due to recent landmark cases on the national living wage they are saying they should be paying for sleep and all hours they are required to be in my mother’s home and have made an official grievance.
    Now I believe at a cost of nearly 4.5k per month on just wages we pay a very well. At 11 hours work paid each day this is less hours that the carer is in the house and available to work. They may argue for up to 19 hours each day. Luckily if we average out the daily rate over the day and offset accommodation we just hit the nlw of 7.50 so cannot be accused of illigal pay, however as the nlw rises this will change and the cost will be completely unsustainable.
    Can live in carers, (not agency), really insist on being paid 19 hours each day as they are available for work even though 8 hrs are asleep or is it considered their home. I am failing to find clarity and keep find conflicting information.

  27. I find it baffling that some people seem to be alright with carers being paid below minimum wage. It’s called minimum wage for a reason. Not paying it as an employer means you are BREAKING THE L-A-W! Not sure why some people struggle with that basic concept.
    Saying ‘oh well if your company has to pay up you would be out of a job’ or ‘as a company we’re not making a loss if we need to pay more’, seems to be a perfectly acceptable way to run a business. Let’s stick our heads in the sand and pretend all is well. Why not instead say, we messed up, we’ll draw a line under it and from now on we’ll pay you a decent rate for your sleep in hours? Why, because they know that not a lot of people will want to come forward and complain, so they get away with it.
    If I was working in a sweat shop in East London sowing garments for a high street brand from 23 – 07 or picking fruit in Kent or a big supermarket at £3.13 p.h., Channel 4 investigative reporters would be all over it and people would scream bloody murder.
    I’ve been working as a residential care worker in a children’s home for over a year now and just found out about these rulings re. sleep ins and minimum wage. My job is definitely rewarding, although not always in an obvious way. It is by far the most physically, as well as emotionally challenging work I’ve ever done. No wonder staff turnover in care homes are high. People usually leave after dealing with challenging behaviour, aggression, sexualised behaviour, ADHD, ODD, absconding and potential child sexual exploitation and doing restraints on a daily basis. As a bonus you get kicked, punched, spat on, screamed at and something or other is thrown at you while you’re on shift.
    Not to mention the pressures from Ofsted, social services, our own management and the public to manage these young people’s behaviour and try to help them cope with every day life.
    We are paid an hourly rate from 07 – 23 and ‘clock off’ at 23, however there’s almost always paperwork that keeps you going till midnight or later if it’s been a rough day.
    We’re paid a flat rate of £25 for the hours of 23 – 09, but are expected to be up and ready at 07 to start and wake the young people and prepare them for school.
    The bedroom doors are alarmed, so as soon as someone comes out of their bedroom after their bedtimes we need to check why and get them back into their bedroom. Could be the toilet or could be an attempt to try and wake up the whole house for a bit of fun.
    My point is, when you are sleeping in, you’re at the company’s premises and at their disposal as per your contract. You can’t go to the pub, or lock the doors and go home. So it’s work, plain and simple. Why is it o.k to pay £25 for those 8 hours?
    But yeah ‘putting some kids to bed’ and ‘sleeping’ in the house to deal with ongoing disruptive behaviour, bed wetting, soiling, night terrors etc. isn’t worth paying the people who deal with it the money that by law they’re entitled to.
    This is not a boohoo story, but if you are able to pass the DBS checks with flying colours, why not give it a try and then give us your opinion?

  28. My company just removed sleep shifts and I wondered why, then I found out they didn’t want to fork out £75 to staff for sleeping, which was originally £25 each sleep. I looked online and saw the gov site regarding NMW during sleeps. I found on various other sites that the money can be backdated 6 years. Think I might give it a whirl.

  29. I would be interested to know if the recent ruling by EAT regarding being paid to sleep will apply to myself and others like me. I am a Resident Estate Manager for a company which manage private leasehold retirement housing. We are expected to be on duty for 24 hours for 20 days per month. As we are supplied with accommodation we are expected to respond to emergency calls during our sleeping hours. We are not compensated monetarily for the time we spend dealing with an emergency if we are called out. Some of us have approached the company about this as we were not made aware at interview that this would be the case, but we have been fobbed off with comments of “you get your accommodation”

  30. The organisation i work for have brought in measured and unmeasured time for sleepovers, by this the mean we get paid 4 hours and do the renaming 4.5 hours for Free, for this we get £32.94. Before this, for 1year we got £60 per sleepover.
    We did not want to sign the new contract, but if we didnt we would lose even more money, as losing £480 per month is alot of money especially when only on NMW. Also threatening to remove individuals into other organisations, as they could not provide night time support. My colleagues and myself could not let this happen, as we have built up a working relationship that has taken many years, and would set the individuals back many years.
    So we are waiting to hear if this is legal, as we need to be on property 24 hours.

  31. I earn 9 pound an hour. So I’m not entitled to receive the new hourly rate for sleep ins. I’m just going to receive the flat rate of 30-50 a night. New staff and relief staff are going to be on a higher wage than me. I’m a senior member of staff with 14 years experience. So my assistant support workers who work under me are paid more than me for doing the same sleep ins. I’ll certainly be getting out of care work. Our company has already cut overtime rate to the minimum wage. And they wonder why they can’t get staff.

  32. I’m a lead support work who got promoted to this over 6 years ago I take on more responsibilities than support workers I’m on £8.50 and hour but I ain’t really as with the top up for sleep now being nlw I still only get paid £30 sleep instead of £60 because they use my hourly rate £8.50 and reduce that to £7.50 basically taken £160 off my contacted hourly rate for the month so I don’t get the top up at all Iv work in the house for 9 years anyone walks into the house to work as support worker and does sleep is on more money than me with less responsibilities it’s crazy what the point in having a contract and promotion can anyone help

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