| The Supreme Court has ruled recently in Royal Mencap Society v Tomlinson-Blake that the time an employee spends asleep or permitted to sleep on a night shift does not normally count as working time when it comes to calculating their entitlement to the National Minimum Wage (NMW). This overturns an earlier ruling that indicated such time should count and has caused difficulties for care service providers, who have struggled to meet this requirement due to the limited funding available to them for sleeping night shifts through local authorities, etc.
Most care providers pay a flat fee of around £35 for a sleeping night shift to staff, which is clearly well below the minimum wage as an average hourly rate for the whole period. The ruling states that time spent actually working on a shift – for instance, if they are woken up to assist with a service user – should count as working time.
Employers need to remember also that the NMW rate does not need to be paid with respect to every hour worked. They have to pay it on average over the relevant pay period. So if someone is paid weekly, they need to check that the total pay for that week divided by the total number of hours worked comes to at least the NMW level. If they are paid a flat rate for a sleeping night shift of £35 plus, say, £9.50 per hour for day shifts, then it is likely this will be more than enough to meet the NMW requirements even if they are up and working for a few hours on their sleeping night. |
