Are your employees entitled to pay for the time they were asleep?
Following the court ruling in Royal Mencap Society vs Tomlinson-Blake case, significant changes have been introduced to the way workers on sleep-in shifts are paid.
1. What is National Minimum Wage and who it applies to?
National Minimum Wage is a minimum amount workers are entitled to receive for the hours they work. From April 2018 it is set by the government to £7.83 per hour for an employee aged 25 and over, due to rise to £8.21 per hour in April 2019. National Minimum Wage Act applies to almost anyone who is classed as a worker and above school leaving age. The exemptions are self-employed, volunteers, company directors, members of armed forces and work experience students.
2. What are sleep-in shifts?
In some sectors, for instance care sector, workers are required to stay at or near their place of work so that they are available to perform their duties when necessary. The assumption is that they will sleep all or most of this time, but are available to work if the need arises. A care worker who stays at their employer’s premises overnight and is only there in case one of the patients needs assistance, but is generally allowed to sleep, would be a good example.
3. How should workers be paid for sleep-in shifts?
The Court of Appeal ruled that:
– if the employer provides sleeping facilities and the employee is allowed to sleep all or most of the time, then they only need to pay National Minimum Wage for the time the worker was awake to work. However, if the sleeping facilities are provided, but the employee is constantly disturbed and regularly woken up to work throughout the night, then they should be paid National Minimum Wage for the duration of the shift, regardless of how much time they were asleep.
– if the employer doesn’t provide sleeping facilities, the workers should be paid for the whole shift.
Let’s have a look at a few examples:
Example 1
Dave is a night security guard at the factory whose shift starts at 10pm and finishes at 6am. Between 10pm and 11pm he walks around the premises checking all the doors are locked, the CCTV and alarms are on and there is no suspicious activity around the area. He is not required to monitor CCTV footage, but he has to stay on the premises. His employer provides sleeping facilities and after his patrol is finished at 11pm, he is allowed to sleep. At 5am he needs to go on a patrol again which finishes around 6am.
Dave’s employer doesn’t have to pay him for the whole shift – they only need to pay for two hours – 10pm to 11pm and 5am to 6am.
If there was an event that required Dave’s intervention and his sleep was interrupted, he would be also entitled to the payment for the additional time he was working.
Example 2
Maria works 10pm to 6am in a care facility. She is generally allowed to sleep during that time and is only required to work when the residents need her. On Day 1, she is woken up twice. At 1am she attends a patient for half an hour and then at 4am she’s required to assist a lady for another half an hour. The rest of the time she’s asleep. On Day 2, she’s only needed once and spends 45 minutes with a patient.
For Day 1 Maria is entitled to be paid for 1 hour and for Day 2 – 45 mins.
Example 3
Mike’s shift lasts between 10pm and 6am. His employer provides him with sleeping facilities, however, Mike is woken up by service users needing assistance around 7-8 times every night. Each time he is awake between 15 minutes to an hour and then goes back to sleep. In this scenario, it is advisable to reconsider whether it is reasonable to expect him to sleep throughout the shift. Frequent wakings might suggest the employee is unable to sleep during his shift and should be paid for the hours spent on site, not only the time he is working.
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