The appeal against the Employment Appeals Tribunal (EAT) decision on national minimum wage for sleep-in shifts has been overturned. It was considered what rate of pay the worker should be entitled to where they were contractually obliged to spend the night at or near their workplace.
A sleep-in is where a care worker sleeps at or near the home of someone they support so they are on hand in case there is an emergency or other problem in the night.
The idea is the worker would sleep for all or most of the night but may be woken if required to carry out assistance. It has been decided by the Court of Appeal that the worker is actually ‘available’ for work rather than ‘working’. This relies on Section 32 National Minimum Wage Regulations and means the worker is not entitled to be paid the national minimum wage for the time they are sleeping and shall only be paid for the time they are awake to provide assistance, therefore working.
Lord Justice Underhill said “For the reasons which I have given I believe that sleepers-in… are to be characterised for the purpose of the regulations as available for work… rather than actually working… and so fall within the terms of the sleep-in exception.”
“The result is that the only time that counts for national minimum wage purposes is time when the worker is required to be awake for the purposes of working.”