Wright Hassall, a top-ranked firm of lawyers with a specialist care home sector team, offer advice for employers on night shifts and the National Minimum Wage…
Following Employment Tribunal decisions towards the end of 2017, it has been established that “sleep-ins” are covered by the National Minimum Wage (NMW) regulations. A worker, who is found to be working even though he is asleep, is entitled to the National Minimum Wage or the National Living Wage for the hours worked rather than a fixed fee incentive bonus as commonly paid in the past for these shifts. Whether the worker’s sleep has been interrupted or not makes no difference. Whilst this decision was made in relation to care providers, the ruling is applicable across all sectors. This may leave you wondering how this ruling affects your on-call staff, and what this means for workers who have historically worked such hours on a similar pay agreement.
Does this affect my workforce?
The first step you should take is to determine if employees are working during night time hours and secondly, determine whether they are actually considered to be working.
The Government has provided the following guidelines to assist with defining night workers:
• ‘Night hours’ apply whether the employee is on call or in the workplace;
• A ‘night period’ is classed as 11pm to 5am;
• Alternative times can be agreed, although this must be in writing, must be a minimum of 7 hours and must include both the times of midnight and 5am to qualify as ‘night hours’.
So now you must consider if the employee is actually working.
This is best explained with examples. Employee A has been asked to be on call for the night, as there is a risk that there may be high levels of work and extra assistance may be needed. The employee is able to go home and carry about their usual business, but must remain contactable. This employee is not deemed to be working for the purposes of the legislation and there is no requirement to pay them for the time they are on call. However if they are called into work they must be paid at least the minimum wage.
Employee B has been asked to stay on site for the evening as you are anticipating high workloads and want the employee to be readily available should the need arise. Sleep facilities are available and the employee is free to sleep until they are called. For the purpose of this legislation this employee is deemed to be working and must be paid at the least minimum wage for the hours they are on call. 
What is the current National Minimum Wage and National Living Wage?
For ages 16-17 it’s £4.05 an hour, age 18-20 it’s £5.60, 21-24 is £7.05 and the National Living Wage for (25+) is £7.50.
Can my workforce bring forward a historic claim?
Following the Employment Tribunal decisions, the government has waived historic fines for care providers found not to have paid staff the minimum wage for sleep-in shifts up to 26 July 2017. It has also suspended HMRC from enforcing back-pay and the minimum wage in the care sector for sleep-in shifts until it has worked out what impact it could have on the stability of social care.
The Government has also launched a new compliance scheme for social care providers which may have incorrectly paid workers below legal minimum wage hourly rates for sleep-in shifts. The scheme has been designed to help ensure workers are paid what they are owed, while also maintaining important services for people who access social care.
By joining the scheme, you can potentially avoid being subject to orders for back-pay and fines of up to 200% (or £20,000) of back-pay for non-compliance after 26 July 2017. The compliance scheme requires providers to declare any underpayment for sleep-in shifts to HMRC by 31 December 2018, disclose the amount paid to workers to HMRC and then pay the underpayment at the latest by 31 March 2019.
The current position is that back-pay only becomes due if it appears payable on a HMRC inspection, or if an individual employee brings a complaint. The legal analysis underpinning the obligation to make payments is subject to review by the Court of Appeal which will hear conjoined cases of sleep-ins this month.
With regards to businesses outside of the care sector this has yet to be challenged in the Employment Tribunal since the ruling. It is advised going forward that all pay is reviewed to ensure compliance where employees are working what could be considered as ‘sleep-in‘ shifts.
For more information on Wright Hassall, see wrighthassall.co.uk.
