Jonathan Landau, barrister at 5 Essex Court, discusses the legal implications for care home providers of last month’s Supreme Court ruling on sleep-in shifts.
Care home providers took a collective breath of relief after the Supreme Court judgment in the Mencap case was handed down on 19 March. At stake was whether providers are required to pay staff the National Minimum Wage for time staff spend during sleep-in shifts even when staff are not awake for the purpose of work.
It is telling that the provider in question was a charity. This was not a case defended on the basis of profit-seeking but rather reflects the enormous financial challenge facing providers. Had the case gone the other way, it is not clear how the additional costs of care across the sector would have been met.
The usual position is that that employers must pay the National Minimum Wage in respect of all time when a worker is required to be available at or near the employer’s place of business for the purposes of doing work. Accordingly, ‘availability’ for work is sufficient to trigger the duty to pay the National Minimum Wage regardless of the activity of the worker during that time.
However, there are two exceptions to that general rule one of which is where the worker is permitted to sleep during the shift.
The Supreme Court unanimously held that if a worker is permitted to sleep during a shift and is only required to respond to emergencies, the hours in question are not included in the National Minimum Wage calculation unless the worker is awake for the purposes of working. ‘Keeping an ear out’ is not enough when that just amounts to waking up and taking action should that be needed.
As Lord Kitchin pointed out, the effect of the sleep-in provisions cannot be avoided by saying that workers are performing ‘work’ for the whole shift. The whole purpose of the sleep-in exception was to avoid that conclusion.
Avoiding the pitfalls
- National Minimum Wage sets the minimum legal requirements for pay for work. However, employment contracts can, of course, be more generous. This would be a useful moment to check your contracts to ensure that you are not required to pay for all time spent on site.
- It would be sensible to check that any provision for sleep-in expressly states that staff may sleep during their shift unless they are needed for work.
- Providers will need to pay for any period of time when the worker is awake for the purposes of working. Your terms should therefore be clear about exactly what is – and just as importantly what is not – required of staff when they are not asleep within the hours of sleep-in shift.
- It is a requirement of the exception that suitable facilities for sleeping are available. Make sure bed and bedding is available.
- The provisions apply to salaried staff as well as those working by the hour, so check the above points in respect of salaried staff too.
Sleep-in or on call?
One area of uncertainty is the distinction between ‘sleepover’ shifts and ‘on-call or standby arrangements’ where workers are required to be at the workplace outside normal hours with the expectation that they will be required to work. Currently, that distinction is not subject to government guidance despite calls from the Low Pay Commission.
Plainly, carers working night shifts all night will be eligible for the NMW in respect of each hour of their shifts. Usually, staffing ratios will mean that it will be unsafe if they are permitted to sleep. However, there may be some staffing arrangements where staff are generally required to work, but may sleep if it is a quiet night.
Those were not the facts in the Mencap case. However, Lady Arden was clear that the sleep-in exception only applied where the principal purpose and objective of the arrangement is that the employee will sleep unless responding to a disturbance. Accordingly, if the primary purpose of a shift is for work to be carried out, employers cannot escape the NMW provisions by permitting occasional naps. Providers should therefore limit the sleep-in shifts to those who are genuinely expected to sleep.