Getting paid for work sleepovers in care sector: Supreme Court ruling says 'No' !
In a recent significant case for the care sector the Supreme Court has decided that care workers are only entitled to the national minimum wage (NMW) for the hours which they are awake and that they are working. The time that a worker is asleep or near their place of work is not considered as working time for the purposes of the NMW. It has been found that care providers will be expected to agree a flat rate for the duration of the sleep-in shift, provided that the worker is expected to sleep and that they are provided with suitable facilities for sleeping.
The NMW Act states that workers are to be paid the appropriate NMW rate or the National Living Wage (NLW) rate for their age for each hour of “working time” over a relevant pay reference period. The law stipulates the rules as to what is considered working times in order to calculate the NMW. Working time includes when a person is required to be available for work or near their place of work. However, there is an exception for workers that sleep in, a worker who by arrangement sleeps at or near their place of work and is provided with suitable facilities in order to sleep. The law states that the time when a person is available includes only when they are awake for the purposes of working.
The Supreme Court decision
In the recent case of Tomlinson -v- Blake the Supreme Court has confirmed that care workers that carry out sleep-ins are not entitled to receive the NMW when they are asleep. Even if they are required to sleep on site or called upon at night to carry out work. Sleep-in workers who are expected to sleep for the duration of their shift are only entitled to the NMW for the hours which they are working and awake.
What are the penalties of getting the NMW wrong?
Employers which fall foul of the NMW requirements face severe consequences, including payment of the arrears or wages, along with financial penalties of up to £10,000.00 per worker and they also, risk being named and shamed by the Department for Business Energy + Industrial Strategy.
Conclusion
If you are an employer in the care sector it will be necessary to look at the individual agreements and arrangements between the employer and the worker in order to establish whether the NMW will apply. If the worker is only required to work during emergency calls as in the landmark case, then the NMW will only apply during those emergency responses.
It does not matter whether the worker is called upon ten times or only once during their shift, the NMW entitlement will only apply to the times when they are deemed to be “working” so if you would like any further guide as to when workers are entitled to the NMW or if you are an employee and believe that you are not being paid the NMW, then please contact us.
Vaishali Thakerar, Director & Head of Employment, Lawson-West Solicitors, Leicester
vthakerar@lawson-west.co.uk
