National Minimum Wage due for workers undertaking sleep-in duties

26 July 2014
National Minimum Wage due for workers undertaking sleep-in duties

It has been decided in two recent employment appeal tribunal cases that workers who are required to be on the premises, even if permitted to sleep, should be paid the National Minimum Wage for every hour that they spend at work.

Previously the EAT held that the Minimum Wage was due only when the individual was awake and carrying out work duties.

In the case of Esparon (t/a Middle West Residential Care Home) v Slavikovska (2014), a care home was under a statutory requirement to ensure a suitable member of staff was available on the premises at all times. The employment appeal tribunal held that the care worker was deemed to be working for the purpose of National Minimum Wage calculations for the entire shift she was on the premises.

It is not clear whether other NMW cases may be distinguished on the basis that the employer is not obliged to have a suitable person on the premises at all times.

However in light of the decision, organisations may need to check that workers who sleep on-site in order to be available for work are paid at the National Minimum Wage, or assess the risks presented to the organisation where this is not the case by seeking further legal advice.

Further tools for calculating National Minimum Wage are available from the pay section of HRBird.

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