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When does sleeping count as work?

Recent case law found that many staff to be present on site (even if asleep) were entitled to receive the national minimum wage for all those hours

Posted by Julian Owen | August 21, 2018 | Law, finance, HR

VWV’s Alice Reeve discusses this key topic.

In good news for schools with boarding or other residential staff, the Court of Appeal has now produced a judgement (hearing the appeal of Shannon v Rampersad (t/a Clifton House Residential Home) and Royal Mencap Society v Mrs Tomlinson-Blake) that has reverted to the more straightforward reading of the national minimum legislation and confirmed that in most cases it is only time that is spent awake and responding to issues that counts as working time for national minimum wage purposes.

How to calculate whether the national minimum wage has been paid

The following steps are needed:

1) Establish the ‘pay reference period’. This depends on how regularly staff are paid.

 - For staff paid monthly, the pay reference period is a month

 - For staff paid weekly, the pay reference period is a week

 - If staff are paid daily, the pay reference period will be a day

2) Calculate how much pay was received in the reference period. Include: gross basic salary and allowances but not any premium paid for overtime. 

3) Make any adjustment for the accommodation offset. For staff who are provided with free-accommodation this can currently be valued at £7.00 for each day that accommodation is provided in the pay reference period. No other ‘benefits in kind’ count, so you cannot include the value of any utilities, food, etc.

4)  Determine how many hours were worked in the reference period. For salaried staff this can be based on an average over the 12 months.

5) Divide the total pay (including any applicable accommodation offset) in the reference period by hours worked. This must result in a figure greater than the national minimum wage.  For adults (25 and above) this is currently £7.83 per hour.

Alice Reeve

Which hours count?

A key aspect is assessing whether the national minimum wage has been paid is determining which hours count for the purpose of this calculation. The national minimum wage regulations provide that in addition to hours worked, workers;“are treated as doing work if they are available (and are required to be available) at or near a place of work for the purpose of working”. This is subject to exceptions where; “that worker is at home; and/or hours when a worker is available only includes hours when the worker is awake for the purposes of working, even if a worker is required to sleep at or near a place of work and the employer provides suitable facilities for sleeping”.

The facts

Mr Shannon, an ‘on-call night care assistant’ was provided with a flat at the care home where he worked and was required to be in the flat from 10pm to 7am to meet a regulatory requirement. He was permitted to sleep during these hours. He was there to support a night care worker who was on duty and awake during this period. Mr Shannon had to respond to any calls for assistance from the night care worker on duty at the time, but was very rarely called upon. 

In the Mencap case, the claimant was a domiciliary care support worker who worked at the private homes of two vulnerable adults, where she had her own bedroom and access to a shared bathroom. The claimant’s shift rota included both day shifts and sleep-in night shifts. During the night shift, no specific tasks were allocated to her, but she had to remain at the house and intervene where necessary and respond to requests for help and emergencies. The need to intervene was real but infrequent (six occasions over the 16 months before the ET hearing). 

The decision

The EAT in the Mencap case found that it was critical to determine whether an individual required to be on site was working or merely available to work.

It concluded that a ‘multi-factorial’ approach must be taken to determine whether (for minimum wage purposes) someone is working simply by being at their employer’s premises or is merely available to work, whilst sleeping on site. 

"In most cases it is only time that is spent awake and responding to issues that counts as working time for national minimum wage purposes."

The EAT said that the factors which should be considered, which would lead to a conclusion that an individual was working may include; where a regulatory requirement was being met by the worker’s presence, the extent their activities were restricted by the requirement to be on site, the degree of responsibility and type of activities they may be called upon to perform, and the immediacy of the requirement to respond.

The consequence of this judgment had been that many staff sleeping in boarding houses were at risk of being considered to be working for all the hours they were present on site, and not just time spent responding to calls.

The Court of Appeal has now rejected this position. The Court confirmed that it is still important to consider whether an individual is working or merely available to work. It is only if they fall into the latter category that it is possible to make use of the exemptions. However, the judge found that most staff sleeping on premises will be considered to be available to work, and only hours spent awake and responding to calls will count for the purposes of the national minimum wage. This is irrespective of if they are there to meet regulatory requirements.

Best practice

This decision will be welcomed by boarding schools (or any schools with residential staff) and will have implications for most boarding staff. As a starting point it will still be important to identify those staff who are working when required to be present on site, as distinct from merely available to work.

 - Staff who are working either at home or on site (even if work is intermittent with downtime) – all time will count for NMW 

 - Staff who are available to work at home – no time at home will count for NMW 

 - Staff who are available to work on site with arrangements to sleep – only time when awake and responding will count for NMW

In order to ensure that you are compliant, schools should arrange for a record to be kept of hours worked overnight and ensure either that staff are paid for these hours, or that their total remuneration is greater than the national minimum wage when these hours are taken into account.

It is also important to note that whilst this is a helpful decision in relation to claims for pay under the national minimum wage, it does not affect the Working Time Regulations, which are based on different definitions. Schools will still have to consider the requirements of the Working Time Regulations when drawing up rotas for house staff. 

Alice Reeve is a partner at leading education law firm VWV. Alice can be contacted on 0117 314 5383 or at areeve@vwv.co.uk.

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