As April approaches bringing the new National Minimum Wage and National Living Wage increases, we felt it was an appropriate time to remind you of the current position regarding the interaction of the minimum rates and employees who perform sleep ins.

We will focus on three cases, the details of which are likely to sound familiar to very many of our members in the care sector. All cases were decided before the introduction of the National Living Wage and so refer only to the application of the National Minimum Wage. However, the principles will clearly also apply to the National Living Wage.

When the employee cannot leave their post

In Whittlestone v BJP Support Ltd, the Employment Appeal Tribunal (EAT) found that hours spent asleep are classed as working time when the employee is not permitted to leave the workplace during the sleep in shift i.e. it would be considered a disciplinary offence if the employee popped out to the shop. This would mean that all sleeping hours would attract the National Minimum Wage.

When there are requirements/guarantees for a minimum number of staff

In Slavikovska v Esparon, the EAT found that where there is a statutory requirement for a minimum number of employees to be present at the workplace at any one time, then all hours spent asleep by those workers will count as working time. Therefore, all of those hours would attract National Minimum Wage.

This would also apply, the EAT found, where there was no statutory requirement for a minimum number of staff but where the employer guaranteed a certain number of staff at any one time in its literature or service level agreement.

Where the employee lives on site

A different result was found by the EAT in Shannon v Rampersad t/a Clifton House Residential Home when an employee who performed sleep in shifts actually lived in a flat on site at the care home where he worked, and was permitted to spend sleep in shifts in his flat. He was also the second in line for call outs; there was another member of staff who was to be called upon before he was. The EAT decided that the hours spent asleep were not working hours in these circumstances, and therefore did not attract National Minimum Wage.

However, this decision has been appealed to the Court of Appeal and is due to be heard before 5th June 2017.

Senior Payroll Advice Consultant, Richmal Price says: “The movement of cases in this area is troubling for employers whose employees regularly perform sleep in shifts. The specific facts of the case will determine the ET’s decision for cases that reach the tribunal and we await the Court of Appeal’s decision in the Shannon case for more clarity”.