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Legal Corner: Sleep-in worker entitled to National Minimum Wage

30th May 2014

Safia Tharoo

In 1999 the National Minimum Wage Act came into force. This required all workers to be paid a minimum amount per hour, that amount was dependant on their age.

The current National Minimum Wage (NMW) rates are £6.31 for workers aged over 21, £5.03 for those aged 18-20 and £3.72 for those under 18. It is often easy enough to work out how many hours work someone has completed by reference to the number of hours they are required to be either on site, or working for their employer at home or at another location. Sometimes however, it is more difficult to ascertain, as the recent case of Esparon (T/A Middle West Residential Care Home) v Slavikovska UKEAT/0217/12 demonstrates.

Ms Slavikovska was employed as a senior care assistant at Middle West Residential Care Home (‘the care home’). She was contracted to work a 37.5hr week during the day time for which she was paid an hourly rate higher than the NMW, plus a ‘sleep-in’ shift from 9pm to 7am the following morning for which she was paid a flat fee of £25 per shift.

Ms Slavikovska was dismissed and made a number of claims to the employment tribunal, including unfair dismissal, race discrimination and a claim that she was entitled to the NMW for all her ‘sleep-in’ shifts. She was successful in her dismissal claim and her NMW claim. The care home appealed and were given permission to appeal the NMW issue only.

Ms Slavikovska claimed that she was required to work during the ‘sleep-in’ shift, checking on the residents every hour or so, performing ironing and undertaking staff training. The care home denied this and stated that she was allowed to sleep during the shift but had to be available for emergency purposes only.

In order to claim the NMW for the ‘sleep-in’ shifts she had to show that she was undertaking what is referred to in Regulation 3 of the NMW Regulations as ‘time work’, which is defined as ‘work that is paid for under a worker’s contract by reference to the time for which a worker works and is not salaried hours work’.

The many decided cases in this area show that there are two distinct categories of ‘sleep-in’ shifts. The first is where an individual is working merely by being present at the employer’s premises. Examples might include someone employed as a night watchman, who is required to undertake patrols at hourly intervals but is free to read, watch tv, or do any other activity including sleeping, between patrols. Similarly, someone who is employed to man a 24hr phone line would only be required to answer any calls that came in during the night but was free to occupy themselves in between. On the other hand, sometimes employees are provided with sleeping facilities and are only required to be ‘on-call’. An example would be where a restaurant manager was required to sleep on the premises. He was not required to do any work during that time, and indeed was free to leave the premises in the evening provided he slept there. If anything untoward happened, such as a burglary or a fire, he would be expected to deal with it appropriately, but was not entitled to claim the NMW for all the hours that he slept there.

In this case the Employment Appeal Tribunal decided that Ms Slavikovska clearly fell into the former category, as her evidence as to her duties during her shift had been preferred over the care home’s evidence to the contrary. Therefore, if she was performing work during the time she was on duty then she was clearly entitled to be remunerated for that time. However, they also decided that even if the care home’s evidence was accurate and Ms Slavikovska could have slept through her shift, she was only present because the Regulations which cover care homes of this kind required a certain number of suitably qualified people to be working at all times. Ms Slavikovska’s presence was therefore required by law, even if she did nothing during that time. On that basis she was entitled to be paid the NMW for that time.

Employers need to be aware of the detail of the NMW Regulations to ensure that where they employ workers outside of the ‘normal’ work patterns, they still comply with their obligations to pay the NMW and are also aware of when the NMW need not be paid.

Safia Tharoo, 42 Bedford Row, London

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