A brief guide to whether care workers who sleep during their shift are entitled to be paid the National Living Wage.

The National Living Wage (NLW) has increased staff costs for care homes, and with its expected rise from £7.50 per hour to at least £9 per hour by 2020 will further impact the bottom line.

The NLW is payable to staff aged 25 and over, whereas the National Minimum Wage (NMW) is paid to staff aged 24 and under.

A particular issue with the NLW has been whether care staff should be paid for that part of their shift they are asleep and are not allowed to leave the premises.

In the case of Whittlestone v BJP Home Support Ltd [2013], the Employment Appeal Tribunal held that a care worker should be paid the National Minimum Wage for all hours worked, including those she was asleep. The tribunal considered that the worker’s sleepover shift was working time as it didn’t matter whether she was asleep or not – the key point was that she had to stay on the premises for the entire shift, and would have been disciplined if she had left for any reason.

The case can be distinguished from those where the care worker is on call at night time and has the liberty to do as they wish (including sleep), and is only entitled to be paid when actually responding to a call.

So where an employee is required, due to statutory obligations, to sleep at a care home irrespective of whether they are working or not, to ensure the care home can meet its obligations, the NLW should be paid.

But there was one specific case (Shannon v Rampersad & Rampersad T/A Clifton House Residential Home [2015]) where the NLW was not payable, because the sleep-in worker actually lived on site, and was not required to meet the statutory obligations (of adequate staffing) due to there being another worker on the shift. The sleep-in worker was only entitled to be paid the NLW when called upon to help out by the night care worker on duty.

It is worth pointing out that employers may not have to pay the NLW for sleep-in shifts. The time spent on a sleep-in shift will count as working time for the purposes of the NLW calculation, but if a worker is paid in excess of this for other shifts that they work, the overall position may be that they are paid at or in excess of NLW on average over all of the hours worked. In this case the NLW rules will not have been breached.

Where the rules are breached, HMRC also has the power to take civil or criminal action against employers. It can also 'name and shame’.

It is to be hoped that due to the responsibility to properly fund the cost of care under the Care Act, any rise in the NLW will be off-set by local authorities as a true cost of care.

If you would like to discuss the issues raised in this article, please contact a member of our Care Homes team.

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