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  • Overview

    Understanding exactly what the position in relation to this question is particularly important if you are an employer in the care sector or education sector with boarding facilities or any other organisations that requires people to be on call or required to work “sleep-in” shifts.  

    The National Minimum Wage (NMW) sets out specific hourly rates, according to specified age brackets, that must be paid to workers for time worked. What happens when those workers are doing a “sleep-in” shift, are they entitled to be paid the NMW? If so, is it just for the time they are awake or the whole shift during which time they are asleep?

    The Employment Appeal Tribunal (EAT) has recently considered this particular situation in three cases heard together (the lead case Focus Care Agency Ltd v Mr B Roberts). The EAT held in these cases that the time the workers spent asleep constituted time worked because the individuals were on call but were required to be available at or near their place of work.

    The EAT have handed down some helpful relevant factors to discern when workers should be paid NMW throughout their sleep-in shift which we outline below:

    1. What are the employer’s particular purpose in engaging the worker?

      Example: is there a regulatory requirement such as health and safety to have a worker at the site?
       
    2. To what extent are the workers’ activities restricted by the requirement for them to be present and at the disposal of the employer?

      Example: would the worker(s) be disciplined if they left their post during the shift?
       
    3. What is the degree of responsibility undertaken by the worker and the type of activities they may be required to perform?

      Example: is the worker required to provide more substantial personal responsibilities, such as assisting disabled people at a home as opposed to simply being called out in case of emergency?
       
    4. Is there an immediacy for the requirement to provide services?

      Example: Is the worker the individual required to decide whether to intervene and then intervenes?


    If the answer to all of the above is yes, then there is a good chance your worker will be entitled to NMW throughout the course of their sleep-in shift.

    The EAT did emphasis that there is no single determinative factor so whilst the above is helpful guidance, each situation will depend on the relevance and weight of the factual evidence.

    We recommend that you if you have staff who are required do live in or sleep in as a requirement of their job that you review the situation and consider whether you are paying these staff correctly. If you have any questions regarding the above, please feel free to contact us. We’re here to advise you so that you can get a good night’s sleep.

    If you would like to discuss any of the information above, please contact Alexander Millward from our Employment team on 01322 623707 or via alexander.millward@ts-p.co.uk.

     

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