Paid to sleep! National Minimum Wage and sleep-in/on-call staff

Tuesday, 30 August 2011 00:00

Do you have to pay employees who sleep in at your premises? Most people would say no. But things are never that straightforward.

There are different types of worker who need to sleep in, for example night staff at a residential home, or on-call doctors in hospitals, or park wardens on parks. Whether they are covered by the Working Time Regulations or the National Minimum Wage Regulations depends on the requirements of the role.

Employees who sleep in, on call or otherwise can be "working" for the purposes of employment law. If they are working as the law sees it, employers can face hefty compensation claims for:

1. breach of the Working Time Regulations; and

2. failure to pay the national minimum wage

National minimum wage claims can be particularly expensive as the employee can claim for previous years.

Tribunals have said that, if an employee is required to be on-call, the time spent will probably be covered by the Working Time Regulations. This causes particular problems when trying to comply with the requirement for daily and weekly rest breaks. However, simply being on call, however, does not mean they are covered by the National Minimum Wage Regulations (and therefore entitled to pay for the hours spent sleeping). So some employees will be covered by one set of regulations but not by another.

Employees who are required to stay onsite but have to perform tasks during the night, even only intermittently, are covered by the Working Time Regulations and the Minimum Wage Regulations for the time they actually work. Depending on the particular type of work, some employees are covered by both sets of regulations for the whole time they are there. This can be an unwelcome surprise for many employers.

The courts are slowly drawing a distinction between those sleeping jobs which carry responsibilities throughout the night (such as some types of sleep in staff in a nursing home), and those which do not, i.e. where the employee is not required to undertake any particular duties but has to be present purely, for example, for insurance purposes.

The case of Wray –v- JW Lees & Co (Brewers) Ltd is welcome relief to those employers who require staff to sleep in simply to provide a "minimum security or preventative" presence. In this case, Mrs Wray was a temporary pub manager who was required to sleep in at the pub for this reason but was not required to be available for work otherwise. She claimed the national minimum wage for the time spent in the flat upstairs. The Employment Appeal Tribunal agreed with the Employment Tribunal that there was not a sufficient requirement to carry out any duties throughout the night and so the claim failed.

Practical steps

If you employ staff who sleep in overnight, you need to:

1. be clear which category they are likely, or might, fall in to;

2. establish whether it is necessary for those staff to be in that category considering the additional burden of National Minimum Wage costs and the requirement to comply with the Working Time Regulations; and

3. ensure that your employment contracts and policies adequately reflect the situation.

Acting for park home owners, care providers and the leisure industry generally, we have significant knowledge of this area and can provide practical, tailored advice to your particular issue.

For employment advice on this or any other topic, contact the employment team on 01392 207020 or email This e-mail address is being protected from spambots. You need JavaScript enabled to view it .