National minimum wage and sleep in night shifts

12 May 2014

Where a care worker was required to work a number of 'sleep in' night shifts at the employer's premises, and be available for emergency purposes, did the night shifts constitute 'time work' for the purposes of the National Minimum Wage legislation (or was she merely 'on call')?

Yes, the worker was engaging in 'time work' on the 'sleep in' shifts, held the Employment Appeal Tribunal (EAT) in Esparon t/a Middle West Residential Care Home v Slavikovska.

 

Daniel Barnett’s employment law bulletin summarises:

The EAT recognised that it is 'very difficult' to distinguish between cases where the worker was 'at work', being paid to be on the employer's premises 'just in case', and where the worker was 'on call' and not deemed to be working the whole time.

An important consideration is why the employer requires the worker's presence. In this case, the worker was paid to fulfil the employer's legal obligations, under the regulations pertaining to care homes, to have staff available on the premises at all times. It was essential for the employer that staff be there even if they did nothing.

In the circumstances, the Claimant was entitled to be paid simply for being on the premises, regardless of whether she was allowed to sleep on shift.