Business, Employment Law, HowarthsLaw, HR

Being paid to sleep?

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The question as to whether workers who sleep overnight whilst on work related during are entitled to national minimum wage for any time spent sleeping has long been a vexed one.
This month however, the Court of Appeal has ruled in two similar cases which hopefully will bring some long awaited clarity to the issue.
In the cases of Royal Mencap Society v Claire Tomlinson Blake and John Shannon v Jaikisham and Prithee Rampersad (trading as Clifton House Residential Home), the Court found employees who stay at a disabled, elderly or vulnerable person’s house overnight are only entitled to the national minimum wage while they are carrying out their duties – not for the full duration of their sleep-in shift. This will no doubt be welcome news for employers!
In coming to its decision, the Court stated that those people who “sleep in” are really only characterised as being “available for work” rather than actually working. The result of this therefore being that the only time which counts for national minimum wage purposes is the time when the worker is required to be awake for the purposes of working.
As aforementioned, these decisions bring some long awaited (and much needed!) clarity in this area and there is now a clear distinction between “working” and being “available for work”.
Practically, what this does mean is that employers can now stop paying staff the national minimum wage for sleep-in shifts. Whilst this practice would potentially be lawful (provided a full consultation process is followed) and could help employers who budgets are being squeezed this could have a negative impact upon staff morale and staff turnover. Ultimately, the question over payment for time spent sleeping on shift will now be one which can fall to individual employers.
In terms of how much reach the recent judgments will have is yet to be seen but the judgments are limited to facts of sleep in workers who are “contractually obliged to spend the night at or near their workplace on the basis that they are expected to sleep for all or most of the period but may be woken if required to undertake some specific activity”. This limitation should clearly apply to care workers and other workers who perhaps take service users on residential weekends etc. but in terms of night-watchmen providing patrolling duties the judgment made clear that these types of duties will probably fall “comfortably on the “actual work” side of the line”.
In light of this is there a new question to be determined of, what constitutes “work”? If there is an expectation of being woken up frequently during the night, but being permitted to sleep in between does this mean that someone is working? The answer to this remains to be seen, but for now at least the general position is clarified.
If you would like to know more about the judgments or how they might affect your business and employees then please contact the Howarths on 01274 864999, and ask to speak to Charlotte, our Head of Employment Law.

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