The debate surrounding whether employees should be paid whilst they sleep has been rekindled by two recent cases.
In Esparon v Slavikovska a care worker successfully argued that each hour of a sleep-in shift counted towards the time for which she should receive the minimum wage.
In Whittlestone v BJP Home Support Ltd, a care worker successfully argued she had been underpaid in respect of sleep-overs. Mrs Whittlestone had received a flat-rate of £40 for sleep-over shifts which given the hours she spent, was considerably below minimum wage. The Employment Appeals Tribunal (EAT) paid close attention to the agreement that was in place which stated that the employee would work and that had Mrs Whittlestone not been present at any time during a sleep-over shift, she would have been disciplined.
The EAT observed that it did not matter whether Mrs Whittlestone was asleep or performing duties during the sleep-over hours. The key point was that it was a part of her job to be at the client’s home, and for that reason she should be entitled to be paid National Minimum Wage for the duration of her shift.
However, these cases should be distinguished from when a worker is ‘on-call’. Where a worker is on-call, any time spent not actually responding to a call is usually not regarded as working time and they will therefore not be entitled to pay in respect of this time. During the time a worker is on-call, they are free to go about their activities as they wish. The key difference between this and the above cases is the fact that it was an integral part of the Claimants’ jobs to be physically present at their place of work.
In another recent case, the EAT went further and stated that when an employee “remains shackled by his employer to a particular location, and is subject whilst there to provide an immediate response to his employer’s bidding” he should be fully remunerated for his time. By being compelled to remain at a particular location, the employee is complying with a requirement by the employer and as such, must be compensated, namely they should receive at least the national minimum wage.
These recent decisions are likely to affect many employees, especially care workers. There are already significant financial pressures places on care providers and it is likely that they will find it difficult to comply with a pay increase for its staff. However, given the recent increase in the maximum penalty for failing to pay the National Minimum Wage (now £20,000), and the new policy of naming and shaming businesses which do not comply with their obligations, it is more important than ever for employers to review and possibly change their working practices to comply with the law.