The Employment Appeal Tribunal has just published its decision in the case of Whittlestone v BJP Home Support Ltd, which says that employees who are required to "sleep over" at a specified location in the course of their work are entitled to be paid the National Minimum Wage ("NMW") for those hours, regardless of whether their sleep is interrupted.
The need for employees to be available for "sleepovers" is commonplace within the care sector particularly.
The Claimant was employed by BJP to provide care services to service users. She was paid at a rate of £6.35 per hour for her "standard" shifts. The Claimant was also obliged to undertake sleepovers (from 11pm to 7am) for which she was paid a £40 allowance. There was no evidence that the Claimant ever had to attend to service users during the night.
The NMW Regulations contain different categories of work. The Claimant's work was "time work" because she was paid by reference to the hours that she worked (rather than a salary, for example). The Judge considered that the "sleepovers" were "time work" because the Claimant was required to be present at a specified place as part of her work, although she might not have to work when she was there. The level of her activity was not relevant.
However, this may not prove to be a significant issue for employers who pay their employees in excess of the NMW for "standard" hours because it may work out that, overall, the employer has satisfied its obligations under the Regulations within the relevant pay reference period.
Organisations which may be affected by this ruling should review their pay practice to see whether there is likely to be any historic or future liability. If you need any assistance with that, we'd be happy to help.
The EAT also said in this case that the time that the Claimant spent travelling between service users' homes should have been remunerated under the NMW Regulations; although it was acknowledged that each case will have its own circumstances.
Click here to read the full judgement.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
