In the case of Whittlestone v BJP Home Support Ltd the Employment Appeal Tribunal has held that employees who are required to ‘sleep over’ at a specified location during the course of their employment are entitled to be paid the National Minimum Wage (NMW) for those hours spent sleeping even if their sleep is not interrupted.
The claimant was a care worker who was paid £6.35 per hour for the time she spent attending to service users. She was not paid for her travel time. As is often the case within the care sector, she was often required to sleep over at services users homes so that she was available to assist them between the hours of 11pm and 7am if so required. She was paid a flat rate of £40 for doing so. She argued that she was entitled to be paid at the NMW for the time 8 hours sleepover which would have been more than the £40 she was currently being paid.
The EAT held that the entire time that the claimant spent at the service users homes, whether she was sleeping or not, was ‘working time’ for which she was entitled to be paid the NMW. The EAT’s reason for reaching this conclusion was because there was an agreement between the employee and the care provider that she would work and she would have been disciplined if she was not present throughout the night shift.
It held that it was irrelevant whether the claimant was asleep or not as it was her job to be at the service users home and she was entitled to be paid NMW for the duration of that shift. It also held that the claimant was entitled to be paid NMW for the time that she spent travelling between different service users because this was ‘assignment work’ and it was arranged in such a way that she did not have time to go home between visiting each service user.
This case demonstrates the “sleeping exception” under the National Minimum Wage Act is being eroded further and will cause concern amongst all employers with these types of arrangements. Whilst each case is fact specific the working practices used within this case are often used widely within the care sector. An appeal is widely expected particularly in relation to the sleep over hours due to the wider implications of this judgement.