Pay for “sleep overs” for care staff

Should you be paying the National Minimum Wage to employees who are required to “sleep over”? Although this is not a new topic for the care sector, a decision reached in a recent case before the employment appeal tribunal involving Mencap adds further doubt to an already frustratingly uncertain situation.

Consequences of getting it wrong

• Wage costs may increase
• Claims for back pay could date back six years
• Failure to pay carries criminal penalties and fines, including the potential for doubling back pay arrears.

What do you need to do?

First and foremost establish whether you have any care staff who are required to “sleep over” and are not paid the NMW during this period. If you do have staff that fall within this category you should work through the factors identified below. If you are in any doubt over whether you are paying staff correctly seek further advice.

Mencap Society v Tomlinson-Blake – the facts

A care worker was employed by the charity Mencap to sleep at a service user’s home in order to be available to assist them if an incident occurred. She was paid a flat rate of £29.05 for the nine hours she was on the sleep-in shift. The tribunal found that she was entitled to be paid an amount equivalent to the NMW for the whole period she was on shift, including when she was asleep. It found that the onus was constantly on her to use her professional judgement to decide if she needed to intervene. She was obliged to remain on site for the entire period and would have been disciplined if she had left and by leaving would have placed Mencap in breach of its legal obligations. The employment appeal tribunal upheld the tribunal’s original decision.

Uncertainty with no clear test

Unfortunately there is no clear test to establish whether a night worker who is able to sleep on shift should be paid the national minimum wage. A judge, when reaching a decision will look at a number of issues, including:

1. Is the worker there to comply with a regulatory or contractual requirement?
2. Are the workers’ activities restricted and would the worker be disciplined if they left the premises?
3. Is the worker personally responsible to take action and perform duties during the night?
4. Is the worker responsible for deciding for themselves as to whether they need to take action during the night?

It is not the case that just because a sleep-in worker is required to be at the premises all night that they will definitely be entitled to the NMW when they are asleep. The answers to the above factors would need to be considered before reaching a decision.

Practical steps

If you are concerned that you may be underpaying there are a few practical steps you could consider to mitigate the impact:

1. Approach the relevant local authority to pay more (although this is unlikely to be met with a positive response).
2. Consider restructuring pay across the workforce, including day rates, so the total payment made to an individual member of staff results in an average hourly rate matching the NMW.

Mencap Society v Tomlinson-Blake (21 April 2017)

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The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.