Recent case law has established that “sleep-ins” are covered by the National Minimum Wage (NMW) regulations. So even if a worker is allowed to sleep at work, if they are required to stay at their workplace, then all their hours are covered by NMW regulations.
This means if any worker is paid – on average – less than the National Minimum Wage over their pay reference period* they will be entitled to a pay rise. They may also be entitled to back pay but because working patterns vary enormously between individuals; this will need to be done on a case-by-case basis.
This issue will particularly affect our low paid members in the private or community and voluntary sector who do regular sleep-ins. Members who are paid significantly above the NMW and who do sleep-ins are unlikely to be affected, because their pay will not to fall below the NMW on average over the pay reference period.
This will also affect personal assistants, whom UNISON has started to organise in two pilot projects, and have a wider citizenship impact on members, including disabled members, who either employ personal assistants for sleep-ins or pay for such care out of a personal budget.
This does not affect workers who are ‘on-call’ and are not required to be near their workplace. It also does not mean that sleep-ins have to be paid at the NMW level, but just that, overall, total pay for total hours worked must be at least the NMW.
- Worker A is paid weekly.
- They work 30 hours a week at £ 7 / hour
- They also do two sleep-ins of 10 hours each, each of which is paid at £30.
- Overall, they have worked 50 hours, and have been paid £270.
- Their average hourly pay is £5.40 an hour, which is less than the NMW.
- So they are entitled to a pay rise to at least the NMW level overall, and possibly back pay.
- Worker B is paid weekly.
- They work 30 hours a week at £ 8 / hour
- They also do one sleep-in of 10 hours, for which they are paid £30.
- Overall, they have worked 40 hours, and have been paid £270.
- Their average hourly pay is £6.75 an hour, which is more than the NMW.
- So they are NOT entitled to a pay rise, under NMW regulations.
*The pay reference period is the time over which the worker is usually paid – usually monthly or weekly.
Relevant case law:
Esparon T/A Middle West Residential Care Home v Slavikovska UKEAT/0217/12/DA; Whittlestone v BJP Home Support Limited UKEAT/0128/13/BA