Sleep-In Workers Granted Permission to Appeal Pay Decision
The Supreme Court has granted permission to appeal against the decision that care workers who sleep overnight at a client's home are not entitled to the minimum wage while sleeping.
The Court of Appeal
Following the Employment Appeal Tribunal finding that staff who were required to be present at their place of work (even if asleep) were entitled to receive national minimum wage, in July 2018 the Court of Appeal (CA) held that in most cases it is only time that is spent awake and responding to issues that count as working time for national minimum wage. You can read our full article on the Court of Appeal decision here.
The CA decision was welcomed by employers, particularly those in the care sector. However, the Supreme Court has now granted permission for this decision to be appealed bringing with it a further period of uncertainty for those employers employing staff who sleep at their workplace as part of their role.
What Next?
At the time of writing we do not have any further details about when the case will be heard by the Supreme Court. We will, of course, keep you updated.
Whilst any challenge is ongoing employers should continue to follow current guidance and best practice. The current BEIS guidance which was updated in November 2018 advises the following:
"If the employer provides suitable facilities for sleeping, minimum wage must be paid for time when the worker is required to be awake for the purpose of working, but not for time the worker is permitted to sleep. However, if suitable sleeping facilities are not provided then minimum wage must be paid for the entire shift."
It is advisable to ensure a clear record of hours worked overnight is kept and in keeping with CA decision ensure staff are paid for these hours.
Do you employ staff who are required to sleep at their place of work? Please contact Michael Halsey in our Employment Law team for more information on 020 7665 0842, or complete the form below.