The Court of Appeal has provided very clear guidance about when sleep-in staff are entitled to receive the National Minimum Wage (NMW). This may be relevant to some schools and colleges employing night-time security guards or caretakers who are expected to respond to any emergencies during the night.
Mencap v Tomlinson-Blake and Shannon v Rampersad (t/a Clifton House Residential Home), the Court of Appeal had to decide whether workers who provided sleep-in cover should be paid at the appropriate NMW rate for every hour of that sleep in shift – even if no work is actually performed.
The detailed rules are now contained in the NMW Regulations 2015 (the Regulations), which consolidate the 20 sets of amending Regulations that emerged between 1999 and 2014. However, the Regulations have not made any substantial changes to the law.
Workers in the UK must receive the appropriate NMW or National Living Wage rate for their age and these rates are usually increased annually in April. Employers don’t have to pay each hour at the relevant rate, provided the average hourly rate – calculated over the relevant pay reference period (how often the worker is paid) – does reflect the appropriate rates.
The Regulations differentiate between four categories of working time for which workers may be paid:
Time work (work that is paid by reference to the time that a worker works, such as hourly paid work)
Salaried hours work (where the worker is paid for a fixed number of hours a year, paid in regular instalments)
Output work (work paid according to the worker’s productivity)
Unmeasured work (a residual category which catches any other work).
Each category has its own anomalies and, to add to the confusion, a worker may work on more than one basis during the same reference period and, in those circumstances, separate calculations are necessary.
Payment for sleep-in shifts has been particularly controversial in the care sector and this has been an area that has been heavily litigated.
Workers who are not working throughout their sleep-in shifts are only entitled to the NMW for any work they do and, if they don’t perform any work, they do not have to receive the NMW.
Mencap v Tomlinson-Blake, Mencap were contracted to provide support and care to vulnerable adults. Ms Tomlinson-Blake and others carers provided 24 hour support to two men in their home. She worked either a day shift or a sleep-in shift.
Sleep-in shifts lasted nine hours and she received a flat rate of £29.05 for this. Ms Tomlinson-Blake had her own room and could sleep during the shift, but was required to keep “a listening ear out” during the night and provide support where needed and to respond to any emergencies. The need was “real but infrequent” and Ms Tomlinson-Blake had only had to intervene on six occasions over a period of 16 months.
The employee argued she should receive the NMW for every hour of her sleep in shift.
Shannon v Rampersad, Mr Shannon was offered a job as an “on call night care assistant” by his friend who owned a care home. He lived on site in a flat and had to be available from 10pm to 7am each night. He was rarely called upon to help during the night. Following a TUPE transfer, Mr Shannon claimed that he should have received the NMW for all of his night shifts and that he had been underpaid by £240,000.
The lower courts had found that Ms Tomlinson-Blake was working throughout her sleep in shifts and should have received the NMW for those hours, but Mr Shannon was not as he was only available for work (and was not working).
Under the Regulations, workers who are salaried or paid by the hour are either available for work or actually working. Where someone is available for work at or near their place of work, they must be paid (even if no work is available) at the appropriate NMW rates unless:
They are at home, or
The arrangement is that they will sleep and suitable sleeping facilities are provided.
If so, they are only entitled to receive the NMW for any time they are called upon to work. Therefore, if a worker gets up in the night to help a patient, they must be paid for that time, but not any other time when they are in bed or resting.
The Court of Appeal found that both Mr Shannon and Ms Tomlinson-Blake were only “available” to work during their sleep in shifts (rather than actually working) and only had to be paid the NMW if they were asked to work during that time. It took into account a report by the Low Pay Commission, which recommended that workers who were on call and allowed to sleep at their workplace should not have those hours counted for NMW purposes.
Implications for schools/colleges employing caretakers or night time security guards
This decision clarifies the law for “on call” workers expected to sleep at their workplace but doesn’t provide an answer in other cases. For example, the Court approved an earlier case where it was found that nurses operating a night-time call service from their homes were working throughout their shifts, even though they could sleep or relax between calls –
British Nursing Association v Inland Revenue.
Similarly, a night watchman in
Scottbridge v Wright was also deemed to be working throughout his shift, even though there were significant periods of “downtime” when he had no work to do and could sleep on a mattress in his office.
These cases demonstrate that workers who can sleep at work may still be working throughout their shift and there will always be cases where employers have to decide which side of the line their arrangements fall.
Please seek advice if you are unsure which side of the line your arrangements fall.
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