News
Employment Law Update (Sept 2008)
Sleepover duties and the National Minimum Wage
The law on whether the National Minimum Wage (NMW) law applies
to staff employed on "sleepover" duties is in confusion following a
recent case in the Employment Appeals Tribunal (EAT). The case is
important because other cases that go to an employment tribunal
with similar circumstances are likely to be decided the same way.
It is also the first important case that specifically involved
sleepover duties at a care home.
Employers whose businesses offer residential care may employ a
member of staff to do "sleepover" duties, either as part of a rota
system or on a permanent basis. Often, the member of staff is paid
a fixed amount per shift, plus wages at an hourly rate for any time
they are awake and performing duties.
What the case says
The EAT decided that the NMW should be paid for all hours the
employee was on duty, not just for the time he or she was awake and
working.
Why is the law confusing?
Guidance on the NMW issued by the government has previously made
it clear that the NMW did not apply to staff while they were
sleeping, provided appropriate accommodation was provided and the
contract of employment was clear. The case illustrates how
important it is to get independent advice on what the law means to
you, as an employer, rather than just relying on government
guidance.
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What should an employer do?
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If you employ staff on “sleepover” duties and don’t pay the NMW
for the full shift, you should take advice from the Telephone
Advice Service or your Employment Law Consultant.
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