Care worker was entitled to be paid minimum
The Employment Appeal Tribunal (EAT) has recently held, in the case of Mr J Esparon t/a Middle West Residential Care Home v Miss L Slavikovska that “sleep in” night shifts amounted to time work for the purpose of the National Minimum Wage Act 1998.
Miss Slavikovska worked as a care worker at a residential care home. She was required to work a number of “sleep in” night shifts and be available for emergencies. She was paid a lump sum for each sleep in shift which equated to substantially less than the hourly rate of the National Minimum Wage (NMW).
Miss Slavikovska argued that she was entitled to be paid the minimum wage for the sleep in shifts as she was carrying out “time work” for the purposes of NMW legislation. An employment tribunal found in her favour.
Her employer unsuccessfully appealed. In giving judgment the EAT said that when deciding whether an employee is carrying out time work by reason of their presence at an employer’s premises “just in case”, it is important to consider why the employer requires the employee to be on the premises. In Miss Slavikovska’s case the care home had a legal obligation to ensure that at all times an appropriate number of suitably qualified, competent and experienced persons were working at the care home. The EAT said that if, in cases such as this, the employer requires the employee to be on the premises pursuant to a statutory requirement to have a suitable person on the premises "just in case" that would be a powerful indicator that the employee is being paid simply to be there and is thus deemed to be working regardless of whether work is actually carried out. The fact that she was allowed to sleep during the shift was irrelevant.
Amid concerns of non-compliance with minimum wage law within the social care sector HM Revenue and Customs (HMRC) have been targeting this sector. Employers who flout the minimum wage law can expect to face tough sanctions. If you are unsure whether you are complying with your obligations I’m on hand to advise you.
My comment: This has long been in contention, and I can't see why. Basically, if an employee is at the demand of the employer, then they must be at work!