The simple answer to this question is; possibly! Employees can be paid the National Minimum Wage (NMW) whilst sleeping either at work or, in some circumstances, away from the workplace. There has been a flurry of recent case law in this area and I have been involved in a successful case before the Employment Appeal Tribunal very recently. Employers and employees alike are entitled to ask the question – should I pay/be paid the NMW when asleep at work?
Employees who are not duly paid the NMW over the relevant pay reference period can enforce the payment of arrears in one of two ways:
There are four different types of work defined in the National Minimum Wage Act 1998. These are:
This is where many employers are forgiven for being confused and often failing to pay their employees the required NMW. There can be a variety of circumstances in which employees are required to be “on-call” or on “standby” overnight or for set hours during the day. They may be permitted to sleep during this time or only be required on an emergency. Employees may be expected to remain on the premises or be permitted to be on-call at home. Many employers have paid employees a set rate for this “on-call” time, believing they were not actually working and so not entitled to be NMW. The problem facing employers is – when does an employee qualify to be paid for the NMW?
There is much case law on the question of whether an employee is actually working or merely available for work. The relevant legislation to consider is the National Minimum Wage Act 1998 and the National Minimum Wage Regulations 2015.
The Tribunal will consider the following factors when deciding if an employer is indeed working or merely available for work:
The following cases concluded that supposed “on-call” time was in fact working time:
1. British Nursing Association v Inland Revenue (2002)
The Court of Appeal (CoA) held that nurses providing a night service via telephone from home were in fact doing time work through their shift and not merely on call.
2. Burrow Down Support Services Ltd v Rossiter (UKEAT/0592/07)
This case involved a night watchmen at a care home. He was allowed to sleep for much of his shift. The EAT ruled that he was entitled to the NMW for each hour of his shift. Even though he was allowed to sleep, he was still required to deal with any issues arising during the course of his shift. He was therefore working even whilst he was asleep.
3. Whittlestone v BJP Home Support Ltd (UKEAT/0128/13)
This case involved a care worker who was entitled to be paid the NMW for the whole period for which she stayed at the homes of young adults and cared for them. She was provided with a camp bed and permitted to sleep. She was required to be present throughout the period and would have been disciplined if she left.
4. Esparon t/a Middle West Residential Care Home v Slavikovska (UKEAT/0217/12)
Here, a care assistant was also a resident of the care home and did “sleep-in shifts” through the night at the rate of £25 per night. She was permitted to sleep during these times but was required to be on the premises to carry out certain duties and deal with any emergencies. A tribunal concluded that all her night shift hours were working time for NMW purposes.
The law relating to the NMW is complex and employers need to consider carefully whether they have employees who are not being paid the NMW but should be. This will in all likelihood affect employers who have staff working on call shifts or “sleep-in” shifts either at their premises or at home. There are severe penalties imposed by HMRC if it is found that an employer has not been paying the required NMW to its employees, ignoring the cost, time and stress of dealing with an HMRC inspection. Ultimately, whether an employee is working or merely on call will be decided by the facts and circumstances of the case and employers are encouraged to seek expert legal advice if they are in any doubt.
We have a lot of experience in these cases and in recent months we have been involved in a NMW case in the Employment Tribunal which was then appealed to the EAT. We have also assisted a number of clients with HMRC inspections. If you require any further information or have any questions please contact me.