• The National Minimum Wage (NMW) is payable to employees for any time spent working. However, where an employee undertakes a ‘sleep in’ (i.e. where they are able to sleep at work in facilities provided by their employer and during this time they are ‘on call’) are they entitled to the NMW for the time that they are asleep?

    The general position in relation to employees who are ‘on call’ during ‘sleep in’ shifts is that only the hours that they are awake and working are considered ‘time work’ for the purposes of NMW legislation. However, whether an employee is merely ‘on call’ during a ‘sleep-in’ shift, or whether they are actually ‘at work’ throughout, is an important question which may not always have a straightforward answer, as the recent 2014 case of Esparan t/a Middle West Residential Care Home v Slavikovska has highlighted.

    Background

    The case concerned a residential care home worker who was required to work a number of ‘sleep in’ night shifts and be available for emergency purposes throughout. Significantly, the employee was required to be available for emergency purposes to ensure that her employer complied with its legal obligation to provide a minimum level of staff in the care home. The Claimant received a lump sum for each ‘sleep in’ shift but the rate of pay was substantially less than the NMW.

    The Claimant submitted to the Tribunal that she was entitled to the NMW for the ‘sleep in’ shifts on the basis that she was undertaking ‘time work’ for the purpose of NMW legislation. Her case was put to the Tribunal on two grounds;

    (i) She was required by her employer to work and undertake certain duties during her ‘sleep in’ shifts (for example she was required check on residents, although this was disputed by her employer); and
    (ii) She was also entitled to be paid simply for being present at her employer’s premises.

    Decision

    The Employment Tribunal found in favour of the Claimant on both grounds and on appeal the Employment Appeals Tribunal (EAT) upheld this decision. The EAT held that an important consideration in determining whether an employee in such circumstances is ‘on call’ as opposed to being ‘at work’, is why the employer requires the employee to be on the premises. It was held that if an employer requires an employee’s presence in order to comply with a statutory requirement, that would be a “powerful indicator” that the employee is deemed to be ‘at work’, regardless of whether work is actually carried out by that employee.

    Comment In light of this case employers, particularly in the care sector, need to be alert to the possibility that if they require an employee to work a ‘sleep in’ shift in order to comply with a statutory obligation, there may be a strong argument that NMW should be paid for the duration of the shift, even if the employee is permitted to sleep during this time.

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