Working, Sleeping and Payment of the National Minimum Wage

In Whittlestone v BJP Home Support Limited the Employment Appeal Tribunal (“EAT”) has considered whether or not an employee who is required to “sleep over” at a location due to their work is entitled to be paid the National Minimum Wage.

In Whittlestone v BJP Home Support Limited the Employment Appeal Tribunal (“EAT”) has considered whether or not an employee who is required to “sleep over” at a location due to their work is entitled to be paid the National Minimum Wage.

In this case the Claimant was a care worker and was paid £6.35 per hour for her standard shifts spent attending to clients at their homes, but nothing for travel time.  When she was required to undertake “sleepovers” whereby she was required to work between 11:00pm and 7:00am, she was paid £40 for the night.  During the night she was provided with a bed and permitted to sleep, and there was no evidence that she had ever had to attend to service users during the night. 

The EAT in this case looked at the National Minimum Wage Regulations.  All parties accepted that during the night the Claimant was undertaking “time work” as she was paid by reference to the hours she worked, rather than a set salary.  The EAT found that “sleepovers” were “time work” as the Claimant was required to be present at that specified location as part of her work, although she may not have to work when she was there.  It therefore appeared that the level of activity was not relevant. 

The EAT found that if an employee is required to “sleep over” at a specified location as part of their work, then they are entitled to be paid and receive the National Minimum Wage for those hours, regardless of whether or not their sleep is interrupted. 

In this case the EAT also went on to consider the Claimant’s travel time between the clients’ homes, and also found that this should have been remunerated and paid in accordance with the National Minimum Wage Regulations.  However, it acknowledged that each case would have to be considered on its own facts.

In light of this case it is useful to consider employees who work night shifts, and especially those in the care industry to ensure that they are receiving the National Minimum Wage for all the hours that are worked.  It is therefore worth double checking pay practices to ensure that compliance with the national minimum wage is taking place.