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Posted 22 November 2013
by Martin Laver

Is the minimum wage payable for night work?

Ms Whittlestone was a care worker who was paid £6.35 per hour for time spent attending to clients at their homes. As part of her duties, she was also required to sleep over at the homes of service users, in case the clients needed help during the night. For this, she was paid £40 a night in place of the hourly rate, from 11PM-7AM. She brought a claim in the Employment Tribunal arguing that the minimum wage was payable for each hour of the night, even though she was asleep and was not in practice ever required to do any work during this period.

The Employment Appeal Tribunal held that the entire night shift was ‘working time’ for the purposes of the national minimum wage, not just the time she was actually assisting the clients, because it was a fundamental part of her duty to be present throughout the sleepover shift. This accords with previous cases where e.g. a night watchman was entitled to the minimum wage for all of his hours at night, even while sleeping, as it was his primary duty to be present, regardless of whether or not he carried out any activities or was awake while on the premises.  The outcome may have been different had Ms Whittlestone not been required to sleep over but had been offered sleeping facilities as a convenience in case of a call-out and been free to use these or not as she saw fit.

This is a further case on a very difficult area of law which will be of interest to all park owners who have staff (especially wardens) who are required to be available to deal with call-outs outside of normal working hours.

If you have any questions relating to the national minimum wage requirements and how it may impact on the operation of your park, or if you would like a copy of our guidance note on the topic, then contact the parks team on telephone 01392 207020 or by email parks@tozers.co.uk.

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About the author

Martin Laver

Partner

Partner in the commercial litigation team specialising in disputed trusts and Wills