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Carer entitled to minimum wage for ‘sleep in’ nightshifts

The EAT has held that a carer who was required to work “sleep in” night shifts at her employer’s premises was undertaking “time work” in terms of the National Minimum Wage legislation and was therefore entitled to be paid for the duration of her stay.

A distinction has to be drawn between cases where the employee is entitled to be paid simply for being on the premises (such as this one), and cases where they are ‘on call’ and only entitled to be paid for the work done. The EAT thought that the focus should be on precisely why the employer needs the employee to be at the workplace.

Here, there were statutory requirements that a care professional be present at all times, to care for patients in the event of an emergency. This was a “powerful indicator” that the employee was “working” for the duration of the shift, and not simply when emergencies arose. She was being paid simply to be there.

Employers with live-in workers should therefore be aware that, if there is a legal requirement for the workers to be there at night as opposed to it just being more convenient, they may be entitled to receive the National Minimum Wage for each hour during which they are present – even if they are asleep.

Esparon t/a Middle West Residential Care Home v Slavikovska.

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