Minimum wage for sleepover care workers – sleepless nights for employers?

Carers employed overnight 'just in case' they are needed should be paid the hourly national minimum wage even when they are asleep, an employment appeal tribunal has decided.

A notoriously difficult area of the law, particularly in the care industry - the case has opened a can of worms for employers and care-providing charities who say the changes, which include back pay, will hit vulnerable people in need of support the hardest.

Until recently, many overnight carers were paid a flat rate allowance with additional wages for any work carried out if they were woken up.

But according to minimum wage legislation, employers must take into account shifts where staff are allowed to sleep as long as they are 'at work and under certain work-related responsibilities'.

Failure to pay not only carries the potential risk of fines and criminal penalties but the possibility of doubling back pay arrears - something which one leading charity says will have a devastating impact.

The case - £29.05 for a nine-hour shift

In April this year, the charity Mencap, which supports 5,500 people with learning disabilities and their families, lost an appeal against a ruling that it was wrong to have paid a support worker, Mrs Tomlinson-Blake, £29.05 for a nine-hour shift.

The national minimum wage for those aged 25 and over is currently £7.50 an hour and this will increase to £9 an hour by 2020.

Mrs Tomlinson-Blake was employed overnight on a 'just in case' basis, the charity claimed, caring for adults with autism. Mencap said her role was to provide safety and reassurance and she was rarely woken.

And although the hearing was indeed told that she was only woken up six times in 16 months to help someone living in the house, it was held that she should get the full hourly national minimum wage rate because she had to 'keep a listening ear' and was not allowed to leave the premises.

The public service union Unison, which has represented a number of overnight carers, commented: "It's the government's failure to fund social care properly that risks devastating the care industry, not the workers asking for a legal wage.

"Charities and care companies have known for a long time that they must pay sleep-in staff at least the minimum wage. But it's only now that Her Majesty's Revenue and Customs is in pursuit that many are pleading poverty and asking for an exemption from the law."

Lack of clarity and certainty in this area of the law

Two other cases have also been considered by the Employment Appeal Tribunal recently concerning whether individuals on night shifts were "working" for the purposes of calculating pay under the national minimum wage legislation. This has been a thorny issue for employers for a number of years.

Another case involved a couple who were employed as a receptionist and warden at a caravan site. They lived on site, worked day shifts and were on a rota for shifts which ran on from when they finished a day shift through the night to the following morning.

They weren't paid for this apart from a flat rate, emergency call out fee which was only given if they had to do something. The couple said this was unfair, claiming they should have been paid for the whole time they were on call.

Although the Employment Tribunal found that, because the couple was at home whilst on call, they weren't entitled to additional pay the Employment Appeal Tribunals has asked for it to be looked at again.

And in the case of another care worker, the claimant was a sleep-in night worker who was employed to help with any emergency that arose. He was not required to be awake and was provided with facilities for sleeping and paid £25 for each nightshift. The employment tribunal held that the claimant was entitled to be paid the national minimum wage for the hours spent on the nightshift and the Employment Appeal Tribunal upheld the decision.

What does it all mean?

Although the law in this area remains a little muddy, and some commentators observe that different HMRC inspectors have different ways of interpreting the national minimum wage requirements, there are some important things to consider:

• that contracts of employment are regularly reviewed and accurately reflect the terms agreed between the parties;
• the employer's purpose - for example, is having a member of staff sleep over due to regulatory or contractual requirements?
• the extent to which the worker is restricted to staying on the premises;
• the level of responsibility of the worker concerned and the immediacy of the need for the worker to provide services or intervene.

For more help and more information about business employment and business employment disputes, please contact Wards Solicitors' specialist lawyer, James Murray.