Case Review: Whittlestone v BJP Home Support Ltd

The Employment Appeal Tribunal has decided, in a far reaching judgment particularly for the care industry, that a worker must be paid national minimum wage for time they spend sleeping when their mere presence at the workplace means that they are working. Up until now, it had been taken that, during the time that a person is permitted to sleep as part of their job e.g. a sleepover in a care home, only those hours where the person is awake for the purposes of working attract the payment of national minimum wage. The claimant, Whittlestone, was employed by BJP Home Support Ltd to provide care services to clients, referred to as “service users”. She was paid £6.35 per hour under her contract for the time which she spent actually giving care. It was common ground that there were no fixed hours, but she was required to undertake shifts from 11pm – 7am which were termed ‘sleepovers’. This was to provide potential physical care for 3 young adults who suffered from Downs Syndrome. She was provided with a camp bed and bedding which she could use to sleep overnight in the living room of the house occupied by the 3 young adults. Although she could be woken up, there was no evidence that she ever was required to do so to provide any specific care. She received £40 per week in respect of these sleepovers. Whittlestone claimed that she had not been paid national minimum wage because all sleeping hours should attract the minimum wage rate. The tribunal dismissed the claim that sleeping hours should attract the payment of minimum wage. It stated that there is a difference between an employee who is merely working by being present at the employer’s premises and an employee who is simply on call. Whittlestone, it decided, was on call during her sleeping time. The Employment Appeal Tribunal (EAT) subsequently reversed the decision. It did not agree with the reasoning of the original tribunal and decided that a different test should apply. It said the distinction should be drawn between an employee whose mere presence means that they are working and those whose mere presence does not mean that they are working. An example of the latter might be where a person is required to live at or near a particular place but it is not necessary for them to spend designated hours there for the better performance of the contractual duties. It said that the following constitutes ’time work’:
  • specific hours where the individual is required to be at a particular place;
  • failure to be present will be a disciplinary offence;
  • the worker is at the disposal of the employer during that period,
National minimum wage must be paid for each hour of time work. The EAT also noted that if an individual is not able to simply ‘pop out to the shop’ in the time during which they are permitted to sleep, then this time will attract national minimum wage. The employer had therefore breached national minimum wage obligations and Whittlestone was entitled to be paid at the minimum rate for all hours spent during which she was able to sleep.

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