December 23, 2013

Could you get paid for sleeping?

It seems that it’s OK to sleep on the job in certain situations, according to the outcome of a recent Employment Appeal Tribunal.

The Tribunal (EAT) decided that employees required to “sleepover” at a specified location in the course of their work are entitled to be paid the National Minimum Wage for such hours, regardless of whether their sleep is interrupted.

The outcome in this case (Whittlestone v BJP Home Support Ltd) will be particularly relevant to those employers in the care and security sectors.

Facts of the Case

Ms Whittlestone, a care worker, was paid £6.35 per hour for the time she actually spent providing care at a client’s home. Time spent travelling (which she did by bus) between the home of one client and the next, was not paid.

At times she was required to provide overnight “sleepover” care at a client’s home. She was provided with a bed and allowed to sleep during the time her services were not actually required by the client. Her employer paid her £40 a week to cover these “sleepover” occasions.

Ms Whittlestone claimed she was entitled to the National Minimum Wage in respect of the time spent travelling between clients’ homes each day (although not from home to the first client or from the last client back home). She also claimed she was entitled to the National Minimum Wage for the eight hour sleepovers.

An employment tribunal dismissed Ms Whittlestone’s claims.

On appeal, the EAT held that the sleepover hours were indeed “time work”.  This was because there had been agreement between the employer and Ms Whittlestone that she would work during 11pm and 7am. The EAT noted that… “She would have been disciplined if she had not been present throughout that period of time. She could not, for instance, slip out for a late night movie or for fish and chips. The fact that her services were not called upon was irrelevant since her job was to be there.”

Regarding travelling between assignments, the EAT stated: “It is clear that if the work Ms Whittlestone was doing was properly to be regarded on the facts as ‘assignment work’, the travelling time which she spent should have been remunerated. She was on the rota and obliged to visit each client in turn during the course of the day, and there inevitably was travelling time between them.  That time was within the general control of the employer who was arranging the assignments.”

The EAT concluded that Ms Whittlestone was entitled to be paid the National Minimum wage for the duration of the sleepover hours and for the time spent travelling between care assignments.

Implications for Employers

The National Minimum Wage Regulations contain different categories of work. In this particular case, the Claimant’s work was “time work” because she was paid by reference to the hours worked. The sleepovers were considered as “time work” because the Claimant was required to be present at a specified place as part of her work. The fact that she may have been sleeping, rather than engaged in physical or mental activity, was irrelevant when considering whether the National Minimum Wage applied.

This case is important because it clarifies that employers need to focus on the purpose of the employee’s presence at a workplace.  If, as in this case, an employee must be available to provide a service, then they will be working for the purposes of the National Minimum Wage, even if they are not called upon to work.

Employers that fail to meet National Minimum Wage obligations run the risk of Employment Tribunal claims, civil penalties and criminal sanctions. Those who could be affected by this ruling are strongly advised to review their pay practices in this area to assess whether there is likely to be any historic or future liability.

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