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Care Worker Entitled to be Paid for Sleepover Shifts

Posted on 11th June 2014
Case law

The EAT has confirmed that a care worker who was required to undertake “sleep over” night shifts was entitled to be paid the National Minimum Wage for each hour she was on the premises even if she did not carry out any work or spent time sleeping. As we explain below a key factor in this decision was the statutory obligation on the employer to ensure staff were available on the premises at all times and the claimant was there to fulfil that obligation.

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all of the claimant’s time spent on the night shifts was working time; she was not simply on call

Mr J Esparon t/a Middle West Residential Care Home v Miss L Slavikovsk EAT [8 May 2014]

The Issue

The claimant employee worked at the care home as a carer. The claimant was required under her contract of employment to work both day shifts and night shifts. She was paid correctly for all hours worked during the day shifts but the respondent employer paid the claimant a fixed sum of £25 per night shift which worked out at only £2.50 per hour instead of the National Minimum Wage rate of over £7.00 per hour.

The claimant argued that she should have been paid the NMW rate for all hours spent at work on the night shift. The respondent relied on a string of case law that draws a distinction between “at work” cases, where the employee is paid simply to be there “just in case”, and those “on-call” cases where the employee is required to be there on-call and is not deemed to be working the whole time. The respondent said the claimant was simply required to be “on-call” and was therefore only required to be paid if and when she carried out actual work during the night shift.

The EAT Decision

The EAT upheld the employment tribunal’s decision that all of the claimant’s time spent on the night shifts was working time; she was not simply on-call. This was because the tribunal found that the claimant was required to be on the premises and it was irrelevant whether she was allowed to sleep or not, or if she carried out any tasks. The claimant was working simply by being on the premises, even if she was sleeping for some of the time.

An important factor was the requirement on the respondent to have staff stay on the premises as required by Regulation 22 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010:

“In order to safeguard the health, safety and welfare of service users, the [care home] must take appropriate steps to ensure that, at all times, there are sufficient numbers of suitably qualified, skilled and experienced persons employed for the purposes of carrying on the regulated activity.”
The EAT held this was a good indicator as to why the employer required the employee to be on the premises. It said that if the employer required the employee to be present to meet a statutory obligation then the employee would be deemed to be working regardless of whether work is actually carried out.

The claimant was awarded over £15,000 in unpaid wages that amounted to an unlawful deduction of wages under the Employment Rights Act 1996. Additionally she was awarded compensation for her unfair dismissal of over another £15,000.

In Practice

This case shows that for most sleepover shifts in a care home setting this will require the worker to be paid the NMW for all hours spent on the premises.

Given that the claimant was held to be working for the entire night shift, employers must also note that this decision may well impact on working time issues under the Working Time Regulations 1998. Here workers are entitled to an 8 hour limit on night work and entitlements to minimum rest breaks and daily and weekly rest periods.

This case has the potential of increasing costs for care home providers but with the continuing limit on local authority funding for fees, these costs may be difficult to absorb. It makes sense to ensure your staffing arrangements do not create a compliance problem for you.

At Quantrills we can help you review your compliance of both the National Minimum Wage and for the Working Time Regulations. For a no obligation discussion please contact the author.

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