Paid to be asleep? May 2017

This has been an issue in the care sector for some time. This Pulse is particularly relevant for care providers but may also apply to other businesses that require staff to provide sleep-in duty. Many employees are required to sleep at service user’s premises as part of the care provided. For those individuals this means an allowance allocated for the period of sleep, which could be anywhere between 8 and 10 hours. This payment however is often not based on an hourly rate, and falls well below the National Minimum Wage which currently stands at £7.50 per hour for those aged 25 and over.

So are employees entitled to the National Minimum Wage whilst carrying out sleep-in duties?

A recent Employment Tribunal looked at 3 cases and concluded that different factors need to be taken into account, as no one single factor is likely to determine the outcome.
Highlighted cases considered include: Focus Care Ltd v Roberts (Jan 2016); Mr & Mrs Frudd v The Partington Group Ltd (Dec 2015); Mencap v Tomlinson-Blake (Aug 2016).

The following factors have been provided as a useful guide in determining if the NMW applies:

If the employer’s purpose in engaging the employee is to comply with a contractual or regulatory obligation.
If the employee’s activities are restricted by the requirement to be present, and the employee would be disciplined if they left the premises.
If the employee is in a responsible position to take action if required.
These factors are distinguished from cases where the employee is ‘on call’ and does not have to be physically present at the client’s address. They are at liberty to go about their activities as they wish. In these circumstances, the employee is either given a flat rate for being available to respond, or paid only for the time spent dealing with a call.

This will clearly have a significant impact on employers in terms of costs, which will include back dating pay up to 6 years, if the employer is found guilty of failure to pay the NMW.

What can you do?

If you are a care provider, Contact the Local Authority and seek an amendment to the contracts.
Review your employee contracts to check who may be at risk of falling short of the NMW.
Consider making changes to pay so that it is averaged out over the course of the year, and includes sleep-ins. Alternatively the sleep-ins could be dealt with separately as the number worked may vary from month to month.
In an ever increasing squeeze on budgets, it is clear that this will have a significant effect on many businesses, but the consequences of doing nothing could be greater. Our advice would be to have a pragmatic approach and begin by arranging consultation with the Local Authority, so that they are aware of the implications on the care you are able to provide and sustain.

It is clear from the rulings applied by the Employment Tribunal that this is not a ‘one size fits all’ approach, and we would advise that you talk with Tamar HR about the specific circumstances of each case, in order that you can make an informed decision.

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