Are Carers on “Sleepover” Shifts Entitled to the National Minimum Wage?

Are Carers on”Sleepover” Shifts Entitled to the National Minimum Wage?

Every employee older than school leaving age is entitled to receive the national minimum wage. However the Employment Appeals Tribunal (EAT) has recently considered whether or not the minimum wage would still apply to employees required to sleep during their shift.
In Whittlestone v BJP Home Support Limited the Claimant was a care worker and was paid £6.35 per hour for time spent attending clients at their homes. She was not paid for travel between appointments. The Claimant was also required to be present at a client’s house on occasion from 11:00pm to 7:00am known as”sleepovers”. For these shifts she received £40 per shift.
The Claimant was provided with a bed and was permitted to sleep at times when her services were not required. The Claimant claimed that she was entitled to receive the national minimum wage for these sleepovers as £40 for eight hours of work clearly does not amount to the national minimum wage.
The National Minimum Wage Regulations 1999 require that an employee is doing”time work” before they can receive the national minimum wage. The parties agreed that the Claimant was doing”time work” in accordance with the Regulations so this was not in dispute.
The Respondent argued that the Claimant was not entitled to receive the national minimum wage throughout the time that she was required to be present as she was not required to carry out any tasks for the majority of the shift.
The Employment Tribunal found in favour of the Respondent. However the EAT overturned this decision and held that the Claimant was entitled to receive the national minimum wage for her sleepover shifts and also for the time she spent travelling between clients’ homes.
It may be that this is a one off case and the Tribunal may not be so willing to allow all employees in similar circumstances to claim the national minimum wage on the facts. However it is likely that the Tribunal would lean towards decisions that favour Claimants rather than Respondents.
If you believe that your employer is not paying you the national minimum wage or you are having any other disputes with your employer regarding your wages or for any other reason and you are looking for a specialist employment solicitor in Leeds please contact the dedicated employment team at Michael Lewin Solicitors and we will discuss these issues with you.
Written by
Anthony Fox

 

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