Are your care staff entitled to be paid whilst sleeping in?
Employers running care services, whether a residential home or a domiciliary care service, need to consider carefully whether any of their “sleep in” workers are entitled to be paid the national minimum wage.
It is common for care sector employers to pay a fixed fee for carrying out sleep in night shifts, whether at the residential home or a service user’s home. However depending on the reason behind the “sleep in”, paying a fixed fee for the hours covered on a sleep in may result in the employer falling foul of the National Minimum Wage Act 1998 (”NMW”).
The complications surrounding “sleep ins” and the NMW arise in relation to salaried hours for workers or time workers who spend part of their time overnight when they may be permitted to sleep, on or off the employer’s premises, but are otherwise “available” for work when required.
There are “special rules” in the NMW regulations dealing with when standby time should be treated as salaried hours of work or time work respectively. These rules differ depending on whether the worker is at home or at some other place determined by the employer, and (if the latter) whether the employer has provided the worker with sleeping facilities.
However, the special rules hinge on the worker being only available for the purposes of working. They will not apply if the worker is in fact held to be working in which case all the time must be counted as working time and so the employee is entitled to be paid the NMW.
This is because these special rules only come into effect if the worker is only “available for the purposes of working”. They do not apply if the worker is actually “working” even if they are relaxing at home or possibly sleeping, as confirmed in the case of British Nursing Association v Inland Revenue 2002.
On call at or near work with sleeping facilities
If the worker is on call (i.e. “required to be available for the purposes of working” but not actually working) at or near a place of work, and is provided with suitable facilities for sleeping, time during these hours shall be treated as working time but only when the worker is awake for the purposes of working .
Time when the worker is asleep, or is awake for a purpose other than work, is therefore not treated as work.
But it is important to remember that this does not apply where the employee is actually working, in which case all of the working time must be counted.
Deciding what is actually classified as “work” can be difficult in cases where the employee sleeps overnight at the workplace or has their home there and it is this point which as resulted in case law over the years.
There have been a number of cases over the years on this issue, the most recent two being Esparon T/A Middlewest Residential Care Home v Slavikovska (decided 2014) and Shannon v Clifton House Residential (decided 2015) both of which have focused on the purpose of the sleep in and what duties or obligation are being fulfilled as a result of the employees presence, even if that employee is allowed to sleep and not called upon in the night. These factors will decide whether or not the worker is “working” or “available for work”.
Is mere presence “work” or being “available for work?
Case law has drawn a distinction in practice between cases where being present is itself part of the job the individual is employed to do, and those where this is not the case and the worker is genuinely only “on call”.
Cases where it has been held to be part of the job includes a night security guard (Scottbridge Construction Limited v Wright 2003), a carer who was required to sleep at a disabled person’s house overnight (Whittlestone v BJP Home Support 2004), and a residential manager in a care home (Macartney v Oversley House Management 2005).Here, although the workers were allowed to sleep, they were not allowed to leave the premises during the hours in question. They were held to be working, even for the hours they were asleep. Cases where there is a legal or regulatory requirement for someone to be on the premises will fall into this category as confirmed more recently in Esparon t/a Middle West Residential Care Home V Slavikovska, where the care home was under a statutory obligation to ensure that qualified and competent persons were present at all times in sufficient numbers to safeguard the health and safety of residents. Such a statutory duty is a “powerful indicator” that the workers were being paid merely to be present, regardless of whether any other duties were carried out, and therefore would be deemed to be working.
On the opposite side of the scale are those workers who are provided with sleeping facilities and may be on call but are not in fact required to perform duties unless called upon. In the case of Shannon v Clifton House Residential 2015, the employee was an on-call night worker who lived at his place of work. He claimed he should have been paid the NMW for all hours whilst he was asleep. However it was held that the worker here fell within the exceptions under the NMW regulations because he lived in the residential care home where he was employed, but the time in question was time he was entitled to spend at home. In particular the tribunal was permitted to take in to account the fact that there was another night worker on duty whose presence satisfied the statutory obligations of the employer and further because it meant the employee in question was rarely called upon.
The reality is that these cases are all fact sensitive so it recommended that those care organisations that have sleep in workers review the current pay arrangements in place for these workers and satisfy themselves whether or not they are actually working whilst asleep (i.e. fulfilling a statutory obligation, not allowed to leave etc.) or merely being available for the purposes of work.
Oliver McCann, Employment Partner, Napthens LLP – QCS Expert Employment Law Contributor
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