News

Does the national minimum wage (NMW) apply to workers who are allowed to sleep on the job?

In a recent case a care worker staying overnight was entitled to the minimum wage even when sleeping.

In the case of Whittlestone v BGP Support Ltd, the Employment Appeal Tribunal (EAT) has reconsidered this issue and provided guidance.

Facts

The claimant was a care worker required to undertake "sleepovers" between 11pm and 7am as part of her duties. This entailed potentially providing physical care for three young adults who suffered from Down's syndrome.  A bed and bedding was made available for her use at the house occupied by them.  In reality she was never called on to provide care during these nights.

An employment tribunal dismissed her claims. She appealed to the Employment Appeal Tribunal.

Both employer and employee agreed that the NMW applied to her job, but the central issue was whether the sleepovers constituted ‘time work' or not within the meaning of the Regulations. The EAT held that the sleepovers were ‘time work' because:

• the evidence showed there was an agreement between the employer and the employee that she would work during this time
• she would have been disciplined if she had not been present throughout the night (she could not, for instance, slip out for a late night movie or for fish and chips)
• the fact that her physical services were not called on during the night was irrelevant, since her job was to be there.

Comment

This case is important because it clearly states that employers need to focus on the purpose of employees' presence at a workplace.  If, as in this case, it is to be available to provide a service, they are working for the purposes of the NMW, even if not called on to work. The fact that the employee may have been asleep, rather than engaged in physical or mental activity, was irrelevant in considering whether the NMW applied.