National Minimum Wage & Overnight Work

How does the requirement to pay the National Minimum Wage operate when an Employee is asleep for at least part of their shift? Bedford employment solicitor Andrew Buckley sheds some light on the issue. 

This was the problem that the Employment Appeal Tribunal grappled with in the case of Esparon T/A Middle West Residential Care Home v Slavikovska.

The Employee had been employed between 2005 and 2010. She worked at a care home for people who have learning difficulties. She was dismissed for gross misconduct and brought various claims before the Employment Tribunal, including unfair dismissal and discrimination. She also asserted that she had not been paid the National Minimum Wage (NMW) in relation to shifts that she worked. In particular, she contended that the requirement to pay the NMW had been breached when she worked shifts between 9pm and 7am and was paid the sum of £25 for these shifts. The Employment Tribunal accepted the Employer’s evidence that during these shifts, she was allowed to sleep for much of the time. However, the Tribunal found that the requirement to pay the NMW had been breached. The Employer appealed.

The important piece of law is the National Minimum Wage Act 1998, which provides that workers are entitled to be paid the NMW for work performed. Regulations under that Act draw distinctions between whether someone is performing ‘time work’, or is asleep at work.

When considering issues relating to the NMW, Courts and Tribunals have often drawn a distinction between whether someone is on call at home, or whether they are required to be in the Employer’s premises. In this case, however, His Honour Judge Serota QC, sitting in the Employment Appeal Tribunal, indicated that it is difficult to see the distinction between some of the historic cases. Judge Serota found the salient point in the case of Ms Slavikovska was that the Employer had to have someone present during the night time in order that he could comply with his legal obligations under regulations relating to care homes. It was immaterial whether Ms Slavikovska was able to sleep during her shift.

So, for Employers who have staff who are present at work at night – if those members of staff have to be present so that the Employer can fulfill legal obligations, they will almost certainly have to pay the NMW to those staff members.

As an interesting aside, the EAT decision in this case was delayed by a year because the Claimant’s former partner had written to the Employer indicating that some of the evidence given at the initial Tribunal hearing had been false. The EAT decision was held back pending the outcome of the Employer’s application to the Employment Tribunal for a review of the initial decision. This application was unsuccessful and consequently, the EAT judgment was delivered.

For further information, please contact Andrew Buckley or call 01234 270600.