At the end of 2013 an important case went to the Employment Appeal Tribunal (EAT) – Whittlestone v BJP Home Support Ltd – which confirmed that employees who are engaged on ‘time work’*, and who are required to ‘sleep over’ at a specified location as part of their work, are entitled to be paid the National Minimum Wage for all hours they have slept-over. This is regardless of whether their sleep is interrupted by work or not.
Whittlestone was employed by BJP to provide care services – she was paid at the rate of £6.35 for her ‘standard’ shifts and was also obliged to do on-call shift ‘sleepovers’ (from 11pm to 7am) for which she was paid a £40 allowance. She was provided with a bed and permitted to sleep if her services were not needed by the service user.
The EAT had to consider whether such sleep-over work was ‘time work’ for the purposes of the NMW Regulations.
They decided Mrs Whittlestone was employed on ‘time work’ because she was paid according to the hours she worked. The Judge considered that ‘sleepovers’ were working hours and therefore ‘time work’ because she was required to be present at a specified place as part of her work for these hours and her failure to be available and/or work during such a shift could have resulted in disciplinary action; this was irrespective of whether she had to do any work when she was there. There was no evidence she had ever woken to provide care but the Judge said the level of her activity was not relevant.