This week the experts, Adam Partington and Esther Smith advise on whether the pay-to hours ratio on this sleep shift is correct and legal.
The question: Paying the sleeping shift
Currently staff work a shift of 7pm to 7am. They work (awake) from 7pm to 11pm and then can sleep from 11pm to 7am. This is a 12 hour shift but they are paid for eight hours. Is this usual? How do others operate the sleep in shift? Do staff have to be awake?
On call/call out time and payment
Currently staff who are then called out on a sleeping shift are allowed half the time back as lieu time and paid for the other half – and time is calculated in 15 minute blocks.
In addition a 10% shift allowance is paid for working unsociable hours.
Legal advice:
Adam Partington, solicitor, Speechly Bircham
Your question as to whether it is usual to pay staff for eight hours of a 12 hour shift is essentially a commercial one and subject to the terms of the contract between the company and staff. You should, however, make sure that you comply with your legal obligations to pay at least the minimum wage. Your queries also raise legal issues under the Working Time Regulations (“the Regulations”) which contain specific provisions covering night workers – some examples are set out below:
The Regulations impose an eight hour average limit on a night worker’s normal hours of work per day. The average is calculated over a rolling 17 day period, during which the night worker’s average working hours per day must not exceed eight hours. Case law suggests that even though workers may be asleep, so long as they are at the workplace then they will be classed as working and this will be calculated as part of the average. You will need to ensure that staff working the night shift do not exceed this limit or the weekly limit of 48 hours.
If the night worker’s job involves special hazards then the Regulations impose an eight hour actual limit per day. As mentioned above, time asleep in the workplace will need to be included in the calculation of the amount of time worked.
The Regulations also stipulate that employers must offer a free health assessment to any worker who is, or is intended to become, a night worker and that each night worker must have the opportunity of a free health assessment at regular intervals.
The limits on working time are enforced by the HSE or Local Authority Environmental Health Departments.
Separately from the Regulations, your query also raises a potential legal issue with indirect discrimination. Indirect discrimination occurs where an act, decision or policy is not intended to treat anyone less favourably, but which in practice has the effect of disadvantaging a group of people with a particular protected characteristic. In this scenario you mention that night shift workers are only paid for eight hours of a 12 hours shift which may mean that they have to be at work longer than those not working the night shift to earn the equivalent pay.
This may place certain protected groups at a disadvantage if those groups are more likely than others to work the night shift (e.g. men, or younger workers). You would need to show that the policy of paying for eight of the 12 hours does not place a group at a particular disadvantage or, if it does, show that the practice is justifiable as a proportionate means of achieving a legitimate aim.
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Esther Smith, partner, Thomas Eggar
The one piece of information you have not provided about these sleep shift employees is whether they are “on call” when asleep, and whether they can be interrupted at any time. My assumption would be that they are on call, which is why you require them to be on site for their sleep period (particularly given the information in the second part of your question).
If this is right, then any time spent on call will be deemed to be “working time” even if the employee is not actually disturbed. As such, the employee has a right to be paid the minimum wage for every hour they work, including on call time.
So, if the eight hours you pay them is at an hourly rate of pay high enough to ensure that over the entire shift (including the sleep time) they are getting the minimum wage for each hour, then you are fine. If not, then you need to increase pay accordingly, and you would have a historic liability for unpaid wages.
The giving back of time in lieu is fine, but does not stop the time on call being working time, and won’t therefore usually count towards a calculation for minimum wage purposes. However the shift allowance will go into the calculation and be taken account of when assessing whether or not the minimum wage is being paid for the shift as a whole 12 hour period.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
One Response
sleeping and the job
Doctors often are not only told to work long shifts but on breaks there is even a sleep room set up for them to nap. I approve of this. I’d prefer any person I have to deal with is well rested.
Sleep is not a laziness but a re-charging. A power nap helps nearly everybody function. We have the impression that anyone asleep is slacking off but I find as a school teacher even, if I get a 50 minute lunch hour and am completely exhausted, I close the door in the empty room and sit down and shut my eyes for about ten minutes and feel way better. I am paid per day so in theory I guess I am paid for that nap. But I see it as equivalent to a coffee break except with my eyes closed. I think that the right to a coffee break is well protected in the law and we might need to in a sleep deprived society, look at a nap akin to the way we look at a coffee break