Advice When Employing Sleep-In Workers
What is a “sleep-in” worker? Sleep-in workers are required to sleep at, or near, their workplace and be available to work throughout the night. This is especially relevant for care-workers who might be required to sleep during their shift but also carry out work when required.
Do I need to pay sleep-in workers National Minimum Wage (NMW)? Technically no… In the case of Royal Mencap Society v Tomlinson-Blake, it was decided by the Supreme Court that sleep-in workers are only entitled to the NMW when they are “awake for the purposes of working”. Therefore, if they have an uninterrupted night of sleep, even at their workplace, they are not entitled to NMW.
What does “awake for the purposes of working” really mean? If you employ workers who expect to be able to sleep during their shift, they will only be entitled to NMW for the period when they are awake and are actually carrying out work. This means that workers who just can’t sleep for whatever reason or are awake playing on their phones, still won’t be entitled to NMW – they need to be carrying out the role that you employed them for during the night.
What do I need to do? Check your employees’ wages! If you’re not paying NMW when workers are actually working during their night shift, this needs to be rectified as a matter of urgency.
Ensure you are providing suitable sleeping facilities. If this is not the case, then it is likely that NMW will be payable throughout the whole of the workers’ shifts as opposed to only when they are working.
How do I calculate when NMW is due? The best option would be to request that workers record every hour that was worked or is treated as work during their night shift. Clearly this relies on a form of trust between you and the worker, especially if they are a care worker without any other colleagues around. Unfortunately, there might be a relatively high level of administration required to ensure that workers are paid the correct amounts throughout the course of the night.
Can I choose to pay NMW anyway? Of course! Whilst there is no obligation to pay it whilst workers are sleeping and not working, you do have the option to pay NMW regardless. One advantage of doing so is that it could be an attraction for workers joining your organisation – ultimately, you might be paying a higher wage than competitors.
Another advantage is that it would reduce the burdensome administration in dealing with “working time” and deciding when NMW would actually apply.
However, it does of course mean that you could be making a saving on wages if you still to only paying it when workers are strictly entitled.
What if a worker is woken to deal with an emergency but is not needed? If a worker who is expected to sleep most of the night is woken to assist a colleague with an emergency but is then not required and is instead able to read for 30 minutes, then they will still be entitled to NWM for those 30 minutes as they were “awake for the purposes of working”.
If you would like any further guidance as to when workers are entitled to the NMW then please get in touch with the team on 01752 663295.