Rhian Lloyd, Business Consultant at Aspire Business Partnership LLP, reflects on an aspect of National Minimum Wage (NMW) regulation which continues to cause confusion;
Esparon v Slavikovska and Whittlestone v BJP Home Support Ltd are two cases that have brought attention back to the debate on whether workers should be paid for the time spent at work whilst sleeping. Should these hours count as working time for the purposes of National Minimum Wage?
What does the law say?
The NMW Regulations 1999, Part III, Working Time for the Purposes of the NMW state;
15. (1) In addition to time when a worker is working, time work includes time when a worker is available at or near a place of work, other than his home, for the purpose of doing time work and is required to be available for such work except that, in relation to a worker who by arrangement sleeps at or near a place of work, time during the hours permitted to sleep shall only be treated as being time work when the worker is awake for the purpose of working.
16. (1) Time when a worker is available at or near a place of work, other than his home, for the purpose of doing salaried hours work and is required to be available for such work shall be treated as being working hours for the purpose of and to the extent mentioned in regulation 22(3)(d) and (4)(b) except that, in relation to a worker who by arrangement sleeps at or near a place of work, time during the hours he is permitted to sleep shall only be treated as being working hours when the worker is awake for the purpose of working.
So, on face value, these regulations imply that workers who are provided with sleeping quarters at their place of work are only entitled to be paid for the time that they are awake for the purpose of working. Understandably, many employers believe that workers are not entitled to be receiving the NMW for hours spent sleeping. However, this is not always the case and there are exceptions where workers should be paid for the time that they are asleep as demonstrated in the Esparon and Whittlestone cases.
Case law which disputes this understanding
Esparon v Slavikovska
In this case a care worker was expected to work sleep-in shifts in a residential care home. She was required to work a number of sleep-in night shifts and be available for emergency purposes, as well as carrying our certain duties. For each sleep-in shift she was awarded a lump sum; however this was at a rate substantially lower than the NMW hourly rate. The worker successfully claimed to an Employment Tribunal that each hour of a sleep-in shift counted as time for which she should receive the NMW. One of the key factors in this decision was that her employers were required to have a suitable person on the premises to comply with regulations.
Whittlestone v BJP Home Support Ltd
This case involved a care worker successfully arguing in an Employment Appeals Tribunal that she had been underpaid in respect of sleep-in shifts. The worker slept at the house of three young adults, who suffered from Down’s Syndrome, so that she could provide potential care for them. Her contract specifically stated how she was required to sleep-over and how a failure to do so would result in disciplinary action. This case also involved the argument of how time spent travelling between assignments, as she visited different clients throughout the day, counted as working time for NMW purposes. The appeal judge decided that as the sleep over period was stipulated in contract then it would constitute time work for the purposes of calculation of NMW.
What this case law means in practice
These cases demonstrate that the detailed circumstances of why an employee is required to sleep on the work premises need to be considered to establish if the periods asleep count toward time work for the purposes of calculating NMW.
If an employee is contractually obliged to stay overnight on the premises, and has no choice in that matter, then the full period counts toward time work for NMW purposes, whether or not they are involved in any work during that period.
Also, if there is regulatory restriction which necessitates the employee’s presence at the work premises, whether or not they are asleep or awake during that period, if they have no choice about being there then it counts toward time work for NMW purposes.
When would time sleeping not count toward NMW entitlement?
Conversely, there are instances in practice where time sleeping is not classified as working time. For example, if a pub manager is required to live on the pub premises purely for security purposes, but is able to come and go as they please, then time sleeping does not count as working time.
What if you are liable?
The consequences for employers who are found to have not been paying the NMW for eligible time work potentially involve a tribunal claim, requirement to repay underpayments to workers and entry on the Government ‘naming and shaming’ list. As demonstrated in the Esparon case, some employers may be paying a flat rate allowance for shift work, however if the average hourly rate is less than the NMW when the full time period is taken into account there is potential to be taken to a Tribunal.
As an employer it is important to review your workers’ working arrangements and assess whether the hours spent sleeping on the job should be taken into account for NMW purposes. Remember, where the sleep-over is part of the workers’ core duties or it is a regulatory requirement that someone is on the premises, all hours on the premises count as working time and should be considered as time work for the purpose of calculating NMW.