07 Dec 2016
All employers are obliged to pay workers or employees the National Minimum Wage. Failure to do so will, and often does, land employers in a lot of trouble. Consequences of not paying the NMW could result in claims being brought against the employer, notice of underpayment being issued, or can even be considered a criminal offence.But what about if a worker or employee sleeps at their place of work or nearby, such as a security guard or a care worker? A worker who sleeps over may not be considered as ‘working’ during this time, but many are paid by reference of the time they attend, especially in the care and security sectors.
Time workThe first issue for consideration is whether the worker is undertaking timework during this period, which is defined as: Not salaried hours work, and;
- is paid for by reference to the time for which the worker works, or;
- Paid for, or on a piece rate, by reference to the worker's output over a set number of hours which the worker is required to work.
- is available at or near a place of work, and;
- is available there 'for the purpose of working'
- is required to be available, during that time period, at or near a place of work
- is required to be available, during that time period, for the purposes of working, and;
- Is not at home.
Is the employee working or not?The critical point to determine is whether an employee is technically working or not. There is a distinction to be drawn between whether a worker is doing the job they are employed to do simply by being present, and a worker for whom this is not the case. A few questions can be asked to clarify this: is the worker required to be on the premises during the shift for a stated purpose, such as keeping watch or providing potential care if needed during the night? Would he or she be disciplined if they left the premises during the shift? In South Manchester Abbeyfield Society v Hopkins and Woodworth  IRLR 300, the EAT identified that cases showed a difference between:
- where an employee is working merely by being present at the employer's premises, e.g. a night watchman; whether or not they’re provided with sleeping accommodation; and
- where the employee is provided with sleeping accommodation and is simply on call.
ConclusionThis is a tricky area and can have significant consequences if an employer gets it wrong. The key is to carefully consider the type of work being done and the way it is done. It might well mean counting more time than you might think as working time, in which case the worker would be entitled to be paid National Minimum Wage for that whole period of time.
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