Martin Brewer and Esther Smith advise on whether a sleeping shift requires national minimum wage.
Sleeping shift – should we pay NMW?
We are in the Care sector and have a shift called Late/Sleep/Early. A staff member would comes on shift, does a late shift then sleeps at the client premises then work in the morning until the next staff member takes over.
What implications does this have now in terms of the WTD? Are sleepovers part of the WTD? Does this count as working time even though the staff member would be asleep at the client’s house? Also, we give a payment for this sleepover but now wonder if this needs to be at the minimum wage?
Legal advice:
Martin Brewer, partner, Mills & Reeve
This is a potentially complex area so if it’s a big issue do take detailed advice. The general position is that the worker is ‘working’ if he or she is required to sleep in at the employers premises. Thus the worker’s time spent asleep is nevertheless ‘working time’ for the purposes of the WTR. Thus it follows that if the sleeping arrangement was simply voluntary and the worker could go home, the time spent asleep at the client’s premises would not be working time. The key is what is required to be done. Payment for the sleep-in duty is a matter of contract bearing in mind the national minimum wage.
Martin Brewer can be contacted at martin.brewer@mills-reeve.com. For further information, please visit Mills & Reeve.
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Esther Smith, partner, Thomas Eggar
Under the current cases on this area, the answer depends on whether the employee is “on call” when asleep at the client’s house. If there are on call or can be called upon at any time during that sleeping shift then it would be regarded as working time under the Working Time Regulations, and as such the employee has a right to be paid the minimum wage for each hour worked. If the salary for the work done on the other shift is not sufficient to ensure that the minimum wage is paid for each hour of work, then further money may need to be paid to ensure compliance.
However, if the sleeping shift is not really a shift, but time off work, during which for convenience the employee remains on site, then it would not be regarded as working time and the issue of payment does not arise. In order for this to be the case the employee needs to be there out of choice, and therefore have the right to come and go during that sleeping shift or not stay on site at all if they choose not to.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
