It’s Friday which means we have another case law update to ease you into the weekend. Last week we looked at unfair dismissal and the right to work in the UK. This week we have two cases for you, one on sleep-in shifts and the National Minimum Wage and another on voluntary overtime and holiday pay calculations.
Our first case is a Court of Appeal case that looks at the National Minimum Wage and sleep in shifts. Sleep-in shifts occur when an employee has to spend the night sleeping at or near their place of work. It is most common in care roles but can also apply to maintenance/caretaker roles and emergency rescue services.
Often the employee sleep through the night but if the need arises they will be required to wake up and carry out work. Traditionally, whether the employee wakes up or not, sleep-in workers were paid a flat rate per sleep-in shift. This rate would be below the NMW for the amount of time spent on the sleep-in shift.
Last year we covered three cases, including the EAT appeal of today’s case, which set out a matrix for when sleep-in workers would be entitled to the minimum wage. The EAT in those cases held that a sleep-in worker’s entitlement to the NMW would depend on several factors including the employer’s purpose for engaging the employee and how immediately the employee has to respond to any issue during the night.
Therefore, the question in this case is:
Are sleep-in shift workers entitled to the National Minimum Wage for the entirety of their shift?
The facts of this case are summarised in our previous coverage. In short, numerous Claimants, including Tomlinson-Blake brought claims against Mencap, the Respondent. The Respondent had two kinds of night shift: waking and sleep-in. Waking were paid hourly and sleep-in a flat rate of £25.
The ET held that the Claimants were entitled to the NMW for the duration of their sleep-in shift and the EAT confirmed this decision. The Respondent appealed and the Court of Appeal allowed the appeal. The CoA held that some of the case law used to create the criteria that determined NMW entitlement for sleep-in shifts had been incorrectly decided. It held that sleep-in workers would only be entitled to the NMW for the hours that they are awake and working on shift.
The takeaway point:
Yes, sleep-in workers are entitled to the NMW but only for the periods that they are awake and working. If a worker sleeps for their entire shift then the flat-rate will suffice, regardless of how long the shift is. If the worker wakes up and has to work, then this time should be added on to the flat fee.
This will mean any employers who use sleep-in shifts will have to calculate pay on a shift by shift basis with workers accurately recording their working hours for each shift. This decision is likely to be appealed to the Supreme Court and we expect such an appeal to succeed. Clearly if you are at your employer’s beck and call, albeit in bed and asleep, you should be paid the NMW. It is clearly not free time.