Sleeping-in shifts and the National Minimum Wage

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A recent Employment Appeal Tribunal (EAT) has decided that workers who are expected to be on the premises overnight may be entitled to be paid the National Minimum Wage (NMW) for all of the hours they are on the premises, including hours when they are allowed to sleep.

There are two different scenarios here that need to be carefully considered.

If a worker is on the premises just in case they are needed, they will be entitled to be paid the NMW for all hours on site. If the worker is “on call”, they will not be classed as being at work the whole time and will only be entitled the NMW for those hours when they are actually working. It will be down to the Employment Tribunal (ET) to decide whether a worker is “at work” or “on call”. Consideration will be given to why the employer needs the worker present on site. Is it to fulfil a legal obligation which requires the worker to be present at all times even if they have nothing to do and whether the worker is expected to be on the premises the whole time and would be disciplined if they left the premises. If this is the case, it is likely the ET will conclude the worker is entitled to be paid for the entire time they are present on the premises.

The types of business that could be affected by this are those, for example, who have a security guard employed over night to respond to alarm calls or emergencies but for the most part are allowed to sleep; a care worker in a nursing home who sleeps in overnight; a boarding house parent who sleeps in to be available to the children overnight; a night porter in a hotel.

It is likely that workers who have been paid incorrectly historically may be able to make a retrospective claim.

It is worthwhile giving consideration to any workers you have on the premises overnight to ensure you are compliant with this recent decision.

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