March 29, 2021
The case concerned two care workers, who were contractually obliged to spend the night at, or near, their workplaces and were expected to sleep for most of the period but could be woken if their assistance was required. Both workers were paid fixed allowances for “sleep-in” shifts.
However, the workers argued that they were being underpaid under the National Minimum Wage Act 1998 and National Minimum Wage Regulations 2015 on the basis that the whole sleep-in shift constituted time work or salaried hours work.
The Supreme Court concluded that time spent sleeping does not count towards ‘working time’ for the purpose of calculating National Minimum Wage.
In reaching this decision, the Supreme Court held that it was not logical to conclude that a person could be considered to be working when they were asleep. The Court drew a distinction between when an employee is ‘available to work’ for example, when they are on call, and when they were actually working i.e., being awake and responding to a call.
The care workers claimed that having to “keep a listening-ear out” during the sleep-in shifts was akin to working as they would need to be prepared to respond to emergencies. However, the Supreme Court determined that the workers in these circumstances should be classed as being “available to work”, rather than actually performing work. As a result, they would not need to be paid the National Minimum Wage for the shift. Instead, the Supreme Court held that it was appropriate that they should be renumerated with an allowance for this period.
This case will undoubtedly have a significant impact on the Care and Nursing sector, where “sleep-in” shifts are commonplace. The decision made by the Supreme Court is likely be welcomed by many employers in the care sector who were concerned about the prospect of multiple claims for underpaid wages as well as having to pay increased wages in future.
However, many care workers have expressed their dismay at the decision, with some claiming that it reflects a disregard for care work and may even allow employers to abuse the sleeping practice by seeking ways to minimise their wage costs for workers performing valuable services at night.
If you employ individuals to undertake “sleep-in” shifts, you should consider:
Having a Sleep-in and Waking Night policy in place in order to enable employees to understand what is expected in each type of shift and to ensure that employees understand how their pay will be calculated.
Encourage employees who receive an allowance for performing sleep-in shifts to record any time that they do spend responding to a call.
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