Legislation Update: National minimum wage and on-call time

Two recent employment appeal tribunal decisions say that care workers who are required to be on the premises, even if they are allowed to sleep, are entitled to National Minimum Wage (NMW) even when they are sleeping or not carrying out work-related tasks. This is a change from previous Employment Appeal Tribunal (EAT) rulings, which said NMW was payable only when the worker was awake and carrying out work duties.

Where a worker is provided with living accommodation or sleeping facilities at or near work and is required to be available all or some time on call or standby, there is a statutory right under the National Minimum Wage Regulations 1999 to be paid at least minimum wage for the hours the person is "awake for the purpose of working". In the past, this was interpreted as meaning the person is actually working, or is required to be on call or standby and is awake. Under this interpretation, minimum wage is not payable when the worker is sleeping.

But employment appeal tribunal decisions in 2013 (Whittlestone v BJP Home Support Ltd and 2014 (Esparon t/a Middle West Residential Care Home v Slavikovska) have said that in some circumstances (though not necessarily all), minimum wage is payable even when the worker is sleeping.

These decisions on entitlement to minimum wage while required to be on call but being asleep have potentially huge implications for care homes and other employers with similar arrangements. Any organisation for whom the new decisions might apply should take advice.

In Esparon t/a Middle West Residential Care Home v Slavikovska, the employment appeal tribunal ruled that a care worker was entitled to minimum wage for all the hours she was on call, even if she was sleeping. This decision, given on 8 May 2014, was based on the fact the employer had a statutory duty to ensure someone was on site at all times to deal with emergencies.

The EAT said that because there was a statutory obligation for the worker to present, all the time she was present — not just the hours she was awake for the purpose of working — fell within the definition of "time work" in the National Minimum Wage Regulations. This decision makes clear that where there is a statutory requirement for the worker to be on the premises, minimum wage must be paid.

On a separate issue, the EAT also said the worker was entitled to be paid for travel time when travelling between clients' homes. In an HMRC two-year investigation into minimum wage compliance on the care sector, failure to pay for travel time was said to be one of the main factors in non-compliance.

Other aspects apply

Thanks to Sandy Adirondack’s legal update website for voluntary organisations at www.sandy-a.co.uk for this article

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Comments

Sam Cook, HR Advisor at FPM 29/06/2015

Thanks for your comments. Working hours is something that is constantly challenged in the courts. https://www.gov.uk/minimum-wage-different-types-work/overview The government explain that the following does not count: not working but at the workplace or available for work at or near the workplace during a time when workers are allowed to sleep (and you provide a place to sleep). although this is the Government's stance, it is something that is highly dependant on the specific circumstances. ACAS provide a free service the 'pay and work rights' advice line on 0300 123 1100 if you require support or want to check if your situation is lawful.

Lee jackson 26/06/2015

I have same question as matt and would really appreciate answer

Max 30/04/2015

Hi there I read your web page/blog here (as well as other articles on the web) with much interest. I believe I may be entitled to claim minimum wage for the sleep-ins I do where I work. At this stage, the crux of the matter seems to me to be how NMW calculations are made. Some sites say that one needs to look at a Payment Period (in my case a calendar month), then add up all the pay received, then add up all of the hours worked (including those spent on sleep-ins). Then divide the figures to get an average amount, and then check to see whether that average amount is above/below NMW. But then there are these pages by Unite: http://www.unitetheunion.org/uploaded/documents/June%202014%20Briefing%20Sleep%20Ins11-18274.pdf http://www.uniteforoursociety.org/blog/entry/sleep-ins-and-national-minimum-wage-regulations/ which state that: "Because sleep-ins do not constitute salaried work but rather, ‘time work’, hours and salaries cannot be averaged out and National Minimum Wage must be paid for each and every hour of the sleep-in." More specifically, in this one.... http://www.unitetheunion.org/uploaded/documents/jan%2014%20sleep%20in%20briefing11-18599.pdf ....they cite the case law of Ms Kirugo V Turning Point Watford Employment Tribunal September 2009 and state that: "The Respondent argued that if the claimant’s weekly salary was added to the sleepover, and this was divided by the total number of hours worked in a week, including the sleepover, then the average figure of remuneration would have been above the National Minimum Wage. The tribunal ruled that as the sleepovers counted as time work not salaried work, this calculation was irrelevant. The claimant was entitled the National Minimum Wage for the 8 hours of the sleep in" So I'm getting very conflicting views on this and am wondering who's got it right? It would be great to hear from anyone who has any views or information which might clarify the matter. Many thanks Max

Max 30/04/2015

Hi there I read your web page/blog here (as well as other articles on the web) with much interest. I believe I may be entitled to claim minimum wage for the sleep-ins I do where I work. At this stage, the crux of the matter seems to me to be how NMW calculations are made. Some sites say that one needs to look at a Payment Period (in my case a calendar month), then add up all the pay received, then add up all of the hours worked (including those spent on sleep-ins). Then divide the figures to get an average amount, and then check to see whether that average amount is above/below NMW. But then there are these pages by Unite: http://www.unitetheunion.org/uploaded/documents/June%202014%20Briefing%20Sleep%20Ins11-18274.pdf http://www.uniteforoursociety.org/blog/entry/sleep-ins-and-national-minimum-wage-regulations/ which state that: "Because sleep-ins do not constitute salaried work but rather, ‘time work’, hours and salaries cannot be averaged out and National Minimum Wage must be paid for each and every hour of the sleep-in." More specifically, in this one.... http://www.unitetheunion.org/uploaded/documents/jan%2014%20sleep%20in%20briefing11-18599.pdf ....they cite the case law of Ms Kirugo V Turning Point Watford Employment Tribunal September 2009 and state that: "The Respondent argued that if the claimant’s weekly salary was added to the sleepover, and this was divided by the total number of hours worked in a week, including the sleepover, then the average figure of remuneration would have been above the National Minimum Wage. The tribunal ruled that as the sleepovers counted as time work not salaried work, this calculation was irrelevant. The claimant was entitled the National Minimum Wage for the 8 hours of the sleep in" So I'm getting very conflicting views on this and am wondering who's got it right? It would be great to hear from anyone who has any views or information which might clarify the matter. Many thanks Max


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