By Angela Strzyzewska, Senior Solicitor.
The Supreme Court ruled last week that carers who are required to sleep at their workplace in case they are needed overnight are not entitled to the minimum wage for periods when they are not awake for the purpose of working.
If an employee is allowed to sleep during their shift and is only required to respond to emergencies, their hours only count for the purpose of the National Minimum Wage when the employee is awake for the purpose of working.
This case focused on the interpretation of National Minimum Wage regulations and previous government guidance and this judgment marks the end of many years of uncertainty regarding this issue. If the court had ruled against the employer, it could have cost the care sector millions of pounds in backdated pay.
Employers can now be confident that periods during sleep-in shifts when the employee is not required to respond to anything will not attract the National Minimum Wage.
When might payment be required?
If an employee is expected to sleep for most or all of their shift, with the chance of being only occasionally woken to deal with an emergency, then they are working a genuine sleep in shift and they do not need to be paid the National Minimum Wage for the full shift. Those employees are only entitled to receive the National Minimum Wage for hours during the shift when they are actually disturbed during their shift and undertaking work.
Employers can continue to pay sleep-in allowances, which may be less than the National Minimum Wage, for sleep in shifts for hours where the employee is not called upon.
Employers should bear in mind however, that there will still be some circumstances where the National Minimum Wage may be payable for a full night shifts where an employee is permitted to sleep only part of the time.
Not every employee who is allowed to nap between tasks will be seen as a sleep-in employee. Depending on the circumstances, they may be found to be working, as opposed to being merely available for work, even if the work is only intermittent.
If you have any questions regarding this update, or if you require support or advice on any other employment law matters, please do not hesitate to contact our team on 0141 331 5150.