Since the National Minimum Wage was enacted almost 20 years ago, there has been a great deal of litigation over whether workers who are able to sleep during shifts described as “on-call” or “sleep-in” shifts should be paid at the National Minimum Wage rate for the whole period or only if called upon to perform any work.
A requirement to sleep on work premises is common in the care sector, where there is an obvious need and probability for someone to be available in case of emergency. An “on-call” or “sleep-in” allowance is often paid, with an hourly rate only payable if the worker is called upon to do some work.
It is also often a requirement for certain hospitality workers to reside at their place of work, again to be available in case of emergency but also to deter break-ins when premises are closed. Such workers might not be paid at all for sleeping on the premises, which is in reality their home. They are more likely to be able to come and go as they please, and less likely to be called upon to do any work.
Despite the ability to sleep during a shift, some workers have been successful in arguing that they are in fact working simply by being present on their employer’s premises, and are therefore entitled to the National Minimum Wage for the entirety of that shift.
In a group of recent cases heard together, there was an attempt to persuade the Employment Appeal Tribunal to lay down guidance that would provide more certainty as to when there is a need to pay the National Minimum Wage throughout a sleeping shift. That attempt failed, as the Judge confirmed instead that a number of factors are relevant to deciding whether or not a worker is working simply by being present and each case needs to be considered against those factors to determine whether the National Minimum Wage is payable.
Those factors are:
- The employer’s purpose in requiring the worker to be present (such as a regulatory or contractual requirement that someone is on the premises).
- The extent to which the worker’s activities are restricted during the shift, i.e. would they be disciplined if they left the premises to do something else for a short time?
- The degree of responsibility on the worker (cases involving care for vulnerable adults have been distinguished from those in hospitality who might only need to call out emergency services in case of a break in or fire).
- The immediacy of the need to perform actual work. Distinctions might be drawn between someone who would need to decide themselves whether something needed to be done and someone who might be woken by another colleague to tell them that they needed assistance.
Unfortunately, whether or not the National Minimum Wage is payable for a sleep-in shift will continue to be a difficult question to which there are no easy answers. We suggest that those engaging workers who are required to sleep on their premises take specific advice as to whether the National Minimum Wage is likely to be payable in their particular circumstances.
Contact Louise Taft on 020 7935 3522 or firstname.lastname@example.org if you have any questions about the National Minimum Wage.
Whatever your personal circumstances the above is only a guide and we would advise you to contact us to obtain definitive advice as you will appreciate that each person’s circumstances are unique to them.