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Working Sleepovers and the National Minimum Wage (NMW)

According to virtually any empirical research you would care to read, we are an ageing population. It follows then that the number of individuals engaged in care-based employment will continue to rise alongside the number of elderly and vulnerable people requiring care.

Owing to the demand placed on the time of such workers, staying overnight to care for their charges is a very common practice. It is important then that the legal mechanics of how those in the care industry are paid for unsociable hours are clear, both to the workers themselves and their employers.

The recent Employment Appeal Tribunal (“EAT”) case of Esparon t/a Middle West Residential Care Home v Slavikovska has further clarified the position where a care worker is required to sleepover.

The core question before the EAT was whether Miss Slavikovska’s overnight stays at her employer’s premises, wherein she would be available to respond to emergencies, constituted ‘time work’ for the purposes of the National Minimum Wage legislation, or whether she could deemed to be merely on call.

The EAT found in the positive, that Miss Slavikovska’s sleepovers did indeed constitute time work and so she should be paid accordingly for the hours spent on site during that time, regardless of whether she was merely asleep the entire time or not. The EAT did however state that it was difficult to individuate specific scenarios where a care worker might be either being paid to be on the premises as a precaution, whether they were on call or simply at work.

An important factor for the decision in this case and so others like it in future, will be the specific reason for the worker being on the employer premises. Miss Slavikovska was paid to be on site to ensure the home’s compliance with the applicable safety regulations, which required it to have trained staff at the establishment at all times, irrespective of whether or not there was a resident emergency.

Conclusion

While this case echoes similar proceedings brought in recent years, it serves as a helpful and no doubt welcome clarification to the growing army of care workers that look after both the elderly and infirmed. In addition it is a case that should be read and absorbed by those involved in the running of care homes, particular those undertaking HR and management functions.

If you manage a care home and have any questions in relation to working sleepovers and NMW please do not heistate to contact me for a free consultation on 0113 350 4030 or atsamira.cakali@scesolicitors.co.uk


Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here. 

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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