A carer, who sleeps at a client's home, is technically 'on call' during the night. So are they entitled to the minimum wage while they are asleep?
A case was considered on this topic in the Court of Appeal recently, MenCap v Tomlinson-Blake. We also covered a similar subject in March this year, looking at whether stand-by time, spent at home but within a short distance of a workplace, be counted as 'working time'.
Calculating the number of hours worked by a worker
The National Minimum Wage Act 1998 and the National Minimum Wage Regulations 2015 contain highly complex rules about calculating the number of hours worked by a worker. These figures are needed to work out the workers' average hourly pay.
“Time work” or only entitled to pay when awake?
In MenCap v Tomlinson-Blake, the court considered the proper approach to the question of whether employees who sleep-in in order to carry out duties if required, engage in “time work” for the full duration of the night shift, or whether they are only entitled to the national minimum wage when they are awake and carrying out relevant duties.
Paul Burton, Head of Frettens' Employment Team, comments “A multifactorial evaluation is required in this type of case. No single factor is more influential and the relevance and weight of particular factors will vary with the context and circumstances of the particular case.”
Only if they are awake and performing duties
The judge considered the issue as a matter of principle, deciding that workers sleeping in under this sort of arrangement will only be entitled to have sleep-in hours counted for minimum wage purposes where they are, and are required to be, awake for the purpose of performing some specific activity.
He then went on to review about a dozen previous authorities. He held at least one of them to be wrongly decided, meaning that the Employment Appeal Tribunal's decision was flawed because it had been attempting to reconcile previous caselaw that the Court of Appeal now considered wrong.
This is a complicated issue and needs careful planning if you have staff working in similar arrangements.
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and the Employment team will be happy to discuss it with you.
