The Department for Business Innovation and Skills has recently updated its guidance to help employers ensure that they are complying with National Minimum Wage obligations where they have workers who sleep between duties.
In 2013, in the case of Whittlestone v BJP Home Support Ltd, the Employment Appeal Tribunal ruled that where a care worker spent time at the residence of a service user, this time would qualify as “time work” and therefore the worker would be entitled to be paid the National Minimum Wage whether or not she was sleeping during these hours.
The recent guidance clarifies that where a worker is subject to work related responsibilities whilst asleep then they may be deemed to be “working” and therefore entitled to NMW.
Let’s consider a couple of scenarios:
In the first scenario, the worker is a care worker who is required to remain at a service user’s home throughout a nightshift due to there being a statutory requirement for someone to be on the premises due to health and safety legislation. The worker is allowed to sleep during the nightshift when they are not actively working but would face disciplinary sanctions were they to leave the premises. In this situation, these hours would be considered “time work” and therefore this worker would be entitled to NMW for that whole shift.
In the second scenario, the worker works in a pub and the employer requires the worker to sleep in the flat above the pub so that the flat is occupied and to reduce the likelihood of a burglary. The worker however is not actively working, has no specific duties to carry out and is free to come and go as they wish during the night, provided that they sleep there. In this situation, these hours would not qualify as “time work” and so the worker would not be entitled to the NMW except where the worker was awake to deal with any emergencies during the night.
For a link to the updated guidance, please click here