Sleeping in and the National Minimum Wage

The latest topical news item written by a student at the University of Law examines whether a worker is “working” when sleeping.

Employers usually must pay their workers the National Minimum Wage (NWM) for each hour a worker works. This might seem straight forward but what happens where an employer requires a worker to sleep at their workplace? This is a common practice in the care sector, security and hotel industries, and a sleeping-in allowance is often paid. The courts have looked at two issues – is a worker “working” for the purposes of the National Minimum Wage during all of the hours they are sleeping at their place of work, and should the sleeping-in allowance be taken into account when working out the wages the worker receives?

1. Is the worker working when they are sleeping in?

The question to be asked is, are workers who sleep over at their place of work:

1. ”working” during the entire shift even when they are asleep; or
2. only treated as working during times when they are awake and carrying out work for their employer?

This has been looked at in detail by the courts in many cases and most recently in the case of Focus Care Agency Limited v Roberts [2017]. In this case, the court said that if a worker has little or nothing to do during certain hours, it does not mean he is not working. Work may include merely being present ready to react to specific situations that might arise.

The court set out four factors to consider when determining whether a person is “working” by simply being present:

• the employer’s particular purpose in engaging the worker
• the extent to which the worker’s activities are restricted by the requirement to be present and be at the disposal of the employer, including whether the worker would be subjected to disciplinary sanction for leaving the premises
• the degree of responsibility undertaken by the worker during the period
• the immediacy of the requirement to provide services if something untoward occurs or an emergency arises may also be relevant

Is the sleeping-in allowance included when working out the hourly rate of pay?

The short answer to this is yes, when working out the average wage paid to a worker, any sleeping in allowance received is taken into account. It is necessary to look at the wages received by the worker, including any sleeping in allowance, over the pay reference period – this could be a week, a fortnight or a month, and dividing that pay by the number of hours worked.

What you should do if you think you are not being paid for hours when you are sleeping in.

If you are sleeping in at your place of work and think your employer should be paying you for all the hours throughout your shift please contact the Birmingham Peoples Centre so that we can see whether we can help you.