Sleeping on the job has kept employment tribunals busy for years. Employees working night shifts have long argued that even where they’re not actually “on the job” they are still ‘working’ and, so, are still entitled to be paid the National Minimum Wage (‘NMW’).
That’s what happened in Ms Whittlestone’s case. She was a care worker who visited clients in their homes. For sleepover shifts between 11pm and 7am she was paid £40 (so less than the NMW), and was allowed to sleep when she wasn’t needed. There was no evidence that Mr Whittlestone was required to attend to clients during those night shifts.
The Employment Appeal Tribunal (EAT) agreed that she should have been paid the NMW for the whole time spent sleeping over because it was ‘time work’ under the Working Time Regulations. That was regardless of whether her sleep was broken or not. The EAT held that she was also entitled to be paid the NMW for the time spent travelling between clients’ homes.
For employers in the care sector, in particular, this case should trigger a review of contracts and the payments made for sleepover shifts. It’s a complex legal area, and each case is different, but those employers who get it wrong and don’t pay the NMW when they should could face substantial sanctions and adverse publicity.