First Practice Management
- Posted Tuesday May 27, 2014
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