Certainly a worry for Care Providers
Do sleep-ins count as working time?
‘Working time’ for the purposes of the Working Time Regulations 1998 is defined, in relation to a worker, as ‘any period during which he is working, at his employer’s disposal and carrying out his activity or duties.’
Where a worker is required to remain on the employer’s premises or their place of work overnight, even if they are allowed to sleep for all or most of the shift, the whole period will count as working time for the purposes of the Working Time Regulations. This is because the worker is considered to be ‘at the employer’s disposal’ because they are required to remain on site and may be called on during the night to perform their duties.
It is a little more complicated where you are looking at whether hours spent on a sleep-in will be taken into account in working out whether the worker has received the National Minimum Wage(NMW). Here, the courts have drawn a distinction between cases where the job in question is a ‘sleepover job’, and those where the worker sleeps at the workplace and may be called on to work during that period of what would otherwise be sleep, in addition to their normal work.
The courts have found that ‘sleepover jobs’ would include roles such as a night-watchman or security guard, hotel manager or residential care assistant, as their responsibilities continue throughout the night. These workers are considered to be ‘at work’ even when asleep, as their role requires them to be physically present during those hours (and to deal with any situations that may arise during the course of the shift).
Where the job is a ‘sleepover’ job, all of the hours worked, including those where the worker was asleep, will count when calculating whether or not they have been paid the National Minimum Wage.
However, workers who sleep at or near the workplace, who may be called on to work during a period of sleep in addition to their normal duties, would only be entitled to the National Minimum Wage for the hours that they are actually awake for the purpose of working. An example given by the Employment Appeal Tribunal is that of a pub manager who is required to live on the premises and would be expected to deal with any emergencies that arose throughout the night. Only the hours spent actually dealing with those emergencies would count towards their National Minimum Wage calculation.
Whether or not a particular job would be classed as a ‘sleepover job’ is not always clear. If your situation is unclear, you should seek legal advice from an employment law solicitor.