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.
The 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.
There is a further extended definition of time work which applies where, during the time period, the worker:
- 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.
There is an exception, namely where the worker is either asleep, or is awake but not for the purpose of working, even if the worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping.
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.
In Esparon T/A Middle West Residential Care Home v Slavikovska (UKEAT/0217/12/DA) the employer was required to have a suitable employee on the premises pursuant to a statutory requirement. The employee was employed as a care worker at a residential care home. She was required to work a number of ‘sleep-in’ night shifts and be available for emergency purposes. There were statutory provisions which meant that the company had to ensure suitably qualified, competent and experienced persons were working at the care home at all times.The EAT ultimately found in favour of the employee. However, in Shannon v Rampersand  IRLR 982, EAT the claimant was employed as an on-call night care assistant. He was provided with a studio flat in the home, and was required to be there between 10pm and 7am each night, and respond to any request for assistance from the night care assistant on duty. In return, he was paid a fixed weekly wage. The facts showed that, in practice, Mr Shannon was rarely required during the night and was usually able to sleep. In this case, the presence of a person during the whole material period was not a legal requirement. In Wright v Scottbridge Construction Ltd  IRLR 21 the claimant was employed as a night watchman and was required to be present on the employer's premises for a set number of hours per night, although he was permitted to sleep during some of that time. It was held that, under the terms of his contract, the work for which the employee was paid was the whole fourteen hours of his shift during which time the employer required the employee to be available for work on the premises.
This 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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