Do night shift workers have to be paid for sleeping time?

The legal authorities in this area are, by the Employment Appeal Tribunal’s (EAT) own admission, difficult to reconcile.

In a recent case – Esparon t/a Middle West Residential Care Home (E) v L Slavikovska (S) – the EAT found that the sleep-in night shifts worked by S did constitute work and that S was therefore entitled to be paid National Minimum Wage for these hours.

Sleep-in requirements
S was employed as a care worker at E’s residential care home.  She was contractually required to work a number of sleep-in night shifts (being 9.00pm until 7.00am) and was paid at the rate of £20 per shift.

The evidence put forward by S was that she was not permitted to sleep whilst on a night shift. She said that during the shift she completed a variety of duties including checking on residents regularly, ironing, changing incontinence pads and training new staff at night. The majority of these tasks were completed between 9pm and 10pm and 7am to 9am.

In contrast, it was E’s case that it was essential to have somebody in the care home at night in case of emergency, but that they were not required to work beyond 10pm.  This was consistent with a term of S’s contract, which required her to comply with regulatory requirements, by providing back-up in emergency situations.

Entitlement to National Minimum Wage
The Employment Tribunal held that whether or not S was permitted to sleep during the sleep in night shift was irrelevant.  It found that she was required to be at the care home during the shift and during this time could be required to carry out ad hoc duties and assist in the event of an emergency.

On this basis, it held that S was entitled to receive the National Minimum Wage (NMW) for all of the night shift hours worked and ordered E to pay to S the sum of £15,408.28 for failure to pay the NMW.

Regulatory requirements – a key consideration
The key issue for decision on appeal to the EAT was whether the sleep in night shift hours were “time work” within the meaning of the NMW Regulations.  The EAT held that they were.  In reaching this conclusion, one of the key factors taken into consideration by the EAT was whether it was an essential requirement for E to have someone in S’ position at the home, at the relevant time, or whether this was a convenience but not a necessity.

Consideration was given to Regulation 18 of the Care Homes Regulations 2001 and Regulation 22 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 which require sufficient numbers of suitably qualified and experienced staff to be present to ensure the health, safety and welfare of service users.

If an employer requires an employee to be at the place of work due to a statutory requirement to have a suitable person on the premises “just in case” they are required, the EAT’s view was that this is a powerful indicator that the employee is essentially being paid to be there and so is deemed to be working for the purpose of the NMW Regulations.  This is regardless of whether or not the employee is asleep or working during this time.

The second reason why the EAT held that S was engaged in time work was because S actually worked and carried out duties during the sleep in shift and was required to do so by E.

What this means for you
In the majority of circumstances, a care worker will be required to work a sleep in shift due to the regulatory requirements mentioned above.

In light of this case, employees who are paid a lump sum for such a shift, which works out to be less than the hourly NMW rate, and bring a claim to this effect, have a greater chance of being successful with such a claim, based on this Judgment.

Employers should therefore take this into consideration when calculating payment for sleep in shifts, especially when tendering for new contracts, to ensure that the price quoted will allow the employer to turn a profit and not be stung later down the line with a hefty Tribunal award.

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How we can help
For further guidance on this important issue or on any other aspect of employment law, please get in touch with a member of the Employment Team.