• The Government is strengthening minimum wage enforcement and has indicated that in future all employers who are found not to meet national minimum wage (NMW) rules will be publicly named.

    The Department for Business, Innovation & Skills (BIS) has recently published updated guidance on calculating the NMW. This includes revised guidance on workers who sleep whilst on duty.

    The Guidance suggests that employers must ascertain whether a worker is still subject to certain work-related responsibilities whilst asleep, to the extent that they could be deemed to be ‘working’. A worker who is found to be working, even though they are asleep, is entitled to the NMW for the entire time they are at work.

    Workers may be found to be ‘working’ whilst asleep if, for example, there is a statutory requirement for them to be present, for example, for health and safety reasons in a care home, or they would face disciplinary action if they left the workplace. They would then be entitled to the NMW for the whole of the period of their duty, including the time spent asleep.

    There can be situations, however, where a worker is only available for work and is permitted to sleep and suitable sleeping facilities are provided at the workplace – for example, a pub manager who is required to live in accommodation above the pub. In those cases, the individual will not be ‘working’ when not specifically on duty and NMW will not be payable.

    Alternatively, there may be circumstances where the individual must be paid NMW for any time they are available and awake for the purpose of working. Under these situations, it will depend on the nature of the work-related obligations to which the worker is subject while they are asleep.

    Each case may be different and it is important to look at the facts of each case. If you are unsure about the arrangements you have in relation to the NMW please contact us for further information.

    Louise is an Associate in the Employment team, for more information please contact her on 01622 776405.

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