It has recently been decided in the Employment Appeal Tribunal that workers who are expected to be on the premises overnight, may be entitled to be paid National Minimum Wage for all of the hours they are on work premises – even if they are allowed to sleep.
National Minimum Wage is currently £6.31 for workers aged 21 years and above. Up to date figures for the National Minimum Wage can be found on the ACAS website at www.acas.org.uk.
In what circumstances do I have to pay workers for all of the hours they are on the premises?
There are 2 types of cases, which are treated differently:
- Where a worker is classed as being ‘at work’ – being paid to be on the employer’s premises ‘just in case’. Here, they are entitled to be paid National Minimum Wage for all hours they are in attendance; and
- Where the worker is ‘on call’ – not classed as being at work the whole time. There they are not entitled to National Minimum Wage for all hours only those hours where they are actually undertaking work.
How will they make the distinction I hear you ask? Well, an Employment Tribunal are likely to look at the following things when deciding whether a worker is ‘at work’ or ‘on call’:
- Why the employer needs the worker’s presence. They will consider whether it is because the employer has a legal obligation to fulfil, and therefore needs the worker to be at the premises at all times, even if they are doing very little; or
- Whether the worker is expected be on the premises at all times (and for instance could be disciplined by the employer if they left the premises at any time).
If it is the case that the worker must be on the premises for the whole time, regardless of whether they can sleep, it is likely that an Employment Tribunal will find that they are entitled to be paid for all of the time that they are there.
Why should workers be entitled to be paid to sleep?
At first sight it does seem too good to be true that you can be paid to sleep! Whilst it does seem quite unfair that employers have to pay their workers when they could possibly be sleeping, it is important to remember that in these cases the worker is required to be on the premises and able to respond at any time to an emergency.
To give a practical example, you wouldn’t say a worker that sits at the employer’s offices during the day waiting for phone calls was only working, and should only be paid for, the time they were actually on the phone. The same is true for ‘night workers’.
How will it affect me?
This will affect employers who have workers that work overnight who are allowed to sleep whilst on duty. Some examples of this may be:
- A care worker who ‘sleeps in’ at a care home in case there is an emergency situation (such as the residents needing their help during the night),
- A security guard/night watchman who is employed to respond if an alarm is set by an intruder, but are allowed to do very little or sleep whilst on duty, if no alarm is called.
- A school nurse who is employed, and sleeps in, at a boarding school, who must be available throughout the night if they are needed.
This sounds like something that affects me. What can I do?
Workers who have not been paid correctly historically will be able to bring a claim going back many years.
To be compliant with the recent decision, you should consider the following:
- Do I have workers that work overnight who are allowed to sleep/do very little at certain times during their shift?
- Why do I need these workers at these times? Is it a legal requirement/a requirement of the business that these workers are at the premises overnight? Are the workers able to leave the premises during their shift?
- If so, do I pay these staff at least National Minimum Wage for all of the hours for the whole shift?
- Can I ask the workers to do certain tasks that would be beneficial to the business, rather than allowing them to sleep/do very little for the majority of the time?