27 November 2013

The Employment Appeal Tribunal has ruled that workers who are required to 'sleep over' at a specified place in the course of their employment are entitled to National Minimum Wage for all the hours at work, even if these are spent sleeping.

In Whittlestone v BJP Home Support Ltd, it was held that a care worker was at work for the entire period spent overnight at a service user's house, regardless of whether her sleep was uninterrupted and she did not actually provide any services.

The EAT held that Mrs Whittlestone was required to remain at the house overnight under her employment contract and as a result was clearly 'at work' during the time spent there. It was immaterial that she did not carry out any actual work during that time.

This situation is to be distinguished from cases where a worker is not required to work but is required to be at or near her place of work and available to work if called on to do so. In these cases, a worker who by arrangement sleeps at or near the place of work and is provided with suitable sleeping facilities, shall only be treated as being at work for the periods when awake for the purpose of doing work. These 'on call' workers will not be entitled to National Minimum Wage for periods spent sleeping.

The distinction can be a fine one to draw and will depend on the particular circumstances in each case and the degree of control exercised by the employer.

Where workers work shift patterns and are paid by the hour this will constitute 'time work' under the National Minimum Wage Regulations 1999. If time spent by a worker satisfies the above definition of 'time work' then the worker will be entitled to the National Minimum Wage for all of that time. Mrs Whittlestone's overnight work was held to satisfy this definition and thus she did not fall into the exception for workers who were merely 'on call'.

Employers with shift workers who spend overnight periods at work or 'on call' should review worker's terms and conditions to ensure they understand their obligations in relation to paying National Minimum Wage. This is likely to be especially relevant in the care sector but could apply to any worker required to spend overnight periods in a particular location, such as caretakers,  housekeepers or other domestic workers.

If you would like more information, or specific advice, please contact Roger Bull.

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Roger Bull

Roger Bull Managing Partner

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  • Employment Disputes
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