What are ‘sleep-in’ arrangements and payments for Employees

What are ‘sleep-in’ arrangements and payments for Employees

We are asked for guidance surrounding sleep-in arrangements and to aid you wanted to provide you with some practical guidance to assist in your workplace, this guidance covers case law and the background of 2 of these, we can assist you with your Contracts of Employment or any assistance you may need with your Employees.

Importantly, you should consider the legal aspects and cover these in your documents and policies and of course, make the relevant payments to your Employees.

Why not take a read of our article to find out more.

 

What is the latest legal background and how does it impact me as an Employer?

While not changed under the National Minimum Wage (NMW) Regulations, Employees are entitled to be paid the NMW for what is considered to be “time work”, this is generally the time that your Employee would actually spend time working.  Taking a closer look at this under special rules in the NMW Regulations where an Employee is “required to be available at or near [their] place of work for the purposes of working” this will count as ‘time work’.

 

Let’s take a look at the background and the case law facts

These are just the highlights of 2 recent cases, we hope it will assist in deciphering what the legal position is for you and your Employees, the tasks, and whether they are entitled to National Minimum Wage (NMW) for sleep-in shifts and of course at what rate.

The cases we are looking at were both considered by the Supreme Court – Tomlinson-Blake v Royal Mencap [2017] ICR 186 (“Mencap”) and Shannon v Rampersad [2015] IRLR 982 (“Rampersad.

Both of these cases involved care workers who were required to sleep at, or near to, the care home they worked at and in addition to be woken up if there was a requirement to do so. In both instances, the care workers were paid a fixed sum for the sleep-in shift.

In the case of Mrs. Tomlinson-Blake, she was paid additional sums if she was called upon during the night for more than one hour, in Mr. Shannon’s’ case she received free living accommodation as well as the fixed sum. They both claimed that they were being underpaid under the NMW legislation on the basis that the entire sleep-in shift was considered to work.

Back in 2018, the Court of Appeal ruled that in both cases they were to be treated as “available for work” during their sleep-in shift as opposed to actually working; this was based that an Employee must be awake for the purpose of working for time spent at work for it to be considered working time.

This was then progressed to the Supreme Court in March 2021; in that the judgment it upheld the Court of Appeal decision:

Employees on sleep-in shifts in care homes are engaged in “time work” only while they are awake and working and for the rest of the time they are merely “available for work” and not entitled to NMW

 

As an Employer what should I do now in relation to ’time work’?

From the case law back in 2021 the judge held that a multifactorial lest was necessary, setting out four potential and relevant factors, let’s take a look at what these are:

 

• Employer’s purpose for having an Employee present; This may be a regulatory requirement for having someone present at all times, it may indicate that an Employee is working simply by being present
• degree of responsibility placed on the Employee and the types of activities that they may be required to carry out
• the extent to which the Employees activities are restricted on the requirement to be present and at an Employers disposal, including considering whether the Employee would be disciplined if they don’t remain on the premises during the shift or whether they are free to come and go
• the immediacy of a requirement to provide services when an emergency arises or something untoward occurs

 

 

As an Employer what should I do next?

We hope this has allayed some of your questions, we are happy to assist you with any other questions you may have, importantly this decision relates to a statutory exception regarding sleep-in arrangements. Predominantly the cases relate to the care sector but could have wider implications for other sectors.

It is safe to say the judgments provide clarity that Employees who have sleep-in shifts may be ‘on call’ and available to work but is only entitled to be paid the NMW for that time if they are actually called on to work.

As an Employer, you should review policies, procedures, and of course pay meeting NMW requirements, for Employees with sleep-in and other standby arrangements.

One area that is crucial is the terms contained within Contracts of Employment, these should accurately reflect your Employee’s work and above be legally sound.

 

 

How can we help?

We are experts dealing with your HR and Employment Law matters, we can assist you should you need our support with managing sleep-in arrangements, policy writing, or Contracts of Employment, you can contact one of our team today and we can assist you; contact us on: 0333 0069489 or email us on: [email protected]

 

 

 

 

Disclaimer

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