Care workers are in the news again, as Unison back 17 carers who worked for Sevacare in Haringey, North London, in a forthcoming Employment Tribunal claim about underpayment of the National Minimum Wage, including while sleeping at work.
So we examine here the latest position on whether you should be paid for sleeping while at work, and we look at the most important, and recent, tribunal cases which include:
- In 2012 an important case at the Employment Appeals Tribunal confirmed what previous case law had described: during a sleeping night-shift, only the hours spent awake and working will count towards a workers national minimum wage.
- At the end of 2013, an important case went to the EAT – Whittlestone v BJP Home Support Ltd – that confirmed 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 NMW for all hours they have slept-over. This is regardless of whether their sleep is interrupted by work or not.
- However, in October 2015 – Shannon v Rampersad & Rampersad t/a Clifton House Residential Home – Shannon worked on-call in a care home at night, but was allowed to sleep during those hours (responding to any requests for assistance by a night care worker on duty, which was very rare) and received free accommodation in a studio flat in the care home. He was paid the NMW for the times when he did work.
The EAT found that although he was required to be on site and was allowed to sleep in a studio that was his home, he rarely had to respond to calls to work as there was an ‘on duty night worker’ present. The EAT held that only at those time when he was awake for the purposes of working counted as paid working hours.