- Is the worker working simply by being present? For example, a night watchman or night time telephone operator, even if they are permitted to sleep. If so, all hours attract NMW;
- If the worker is merely “on call” with sleeping accommodation provided then the exception applies and only hours spent awake for the purposes of working attract NMW.
Peninsula Business Services has won a significant case in the Employment Appeal Tribunal for a client in the care industry regarding the payment of the national minimum wage. The case sets a precedent for care homes that some sleeping hours do not attract national minimum wage (NMW). This will be welcome relief for care home clients who, due to the most recent case law and government guidance, suggested that, in most care situations, sleep in hours will need to be factored into national minimum wage calculations. During its deliberation, the EAT performed a short analysis of the current case law on the topic, and drew a line between the different treatment of these cases. The EAT accepted Peninsula’s stance that there are two lines of argument in a case like this. The governing question appears to be: