Sleeping on the job and National Minimum Wage
Do employees who do ‘sleep in’ shifts as part of their role qualify to be paid at the National Minimum Wage rate throughout their shift? The Tribunals and courts have been struggling with this question in recent years, and as we have covered in our previous articles, the general direction of the case law was that although each case depends on its specific facts, if an employee is required to be present, they are likely to be entitled to the NMW.
This is a hot topic because it has such significant cost implications for employers who operate ‘sleep in’ shifts, such as in the care sector – costs which of course are only going to increase when the National Living Wage comes into effect in April 2016.
However, a recent case has brought the question of NMW for sleep ins into doubt once again. The case (Shannon v Rampersad & Another (t/a Clifton House Residential Home (2015)) involved Mr Shannon, who was a care worker at a residential care home for elderly people. He lived in a flat on site. He was required to be in his flat between 10pm and 7am and to be available to assist if needed, although a night care worker was the main person on duty. Having Mr Shannon present as well as the night care worker was a requirement in order for the home to meet its statutory care ratios.
In the case the Employment Appeal Tribunal found that Mr Shannon fell within an exception to the NMW because he was at his home during the hours in question. This meant that it was not necessary to consider whether other parts of the statutory test may have applied, and Mr Shannon’s claim was rejected.
The case is an interesting example of one which is very much out of step with the recent developments, and while it may at first glance give some comfort to employers as they grapple with this difficult issue, I would advise you to treat the decision with a degree of caution. For example, as I have covered in my previous article here, a key factor in earlier cases was whether the employee was required (such as by a statutory obligation, or in the case of a nightwatchman by dint of the nature of the role) to be present on the premises. Another significant factor pointing towards NMW is if the employee was contractually required to be on the premises or within a certain distance during their sleep in shift. Both of these factors were present in Mr Shannon’s case and it is not clear why the EAT chose to decide this case differently.
This leaves employers in an incredibly difficult position, because each case has to be considered on its own facts, making it impossible to reliably predict the approach the Tribunals are likely to take. It is not yet known whether Mr Shannon will submit an appeal, but we will keep you updated with any future developments in this tricky area.
We are experienced at advising a number of clients on sleep in issues in the care and education sectors (amongst others). If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected].uk).