In the recent case of Whittlestone -v- BJP Home Support Limited, the Employment Appeal Tribunal considered the question of whether the National Minimum Wage applies to those workers who only sleep – and their decision was ….. yes!
Ms Whittlestone was paid the National Minimum Wage of £6.35 per hour for the time she spent attending to clients in their homes, but was not paid anything for time spent travelling between client's homes.
Her job also involved 'sleepovers' where she stayed at the client's home between 11pm and 7am and for these shifts a flat wage of £40 was paid. A bed was provided and Ms Whittlestone was allowed to sleep if her services weren't needed by the client.
However, the Employment Appeal Tribunal (EAT) agreed that Ms Whittlestone was doing 'time work' within the meaning of regulation 3 of the National Minimum Wage Regulations 1999, and therefore, was entitled to receive the National Minimum Wage for her travel time between client's homes.
The EAT also ruled that Ms Whittlestone was entitled to the National Minimum Wage throughout the entire time she was required to be at the client's home, regardless of whether or not she actually performed any tasks. So, even if she ended up sleeping throughout her whole shift because she wasn't needed by the client, she was entitled to have been paid the minimum wage.
Sarah Naylor, employment solicitor with Atherton Godfrey, said: "Whilst on the face of things this may seem like a straightforward decision, when the potential implications of the decision are considered it is apparent that this will affect thousands of residental care workers across the county.
"In particular, it will affect those who work for Local Authorities and private companies who have had their staff transferred over from Local Authorities. This is because those employees are likely to have nationally-agreed terms and conditions incorporated into their contracts which will only pay them the flat fee for sleep-ins and not the National Minimum Wage.
"There is clearly an opening for claims for unlawful deduction of wages which could go back years. It will be interesting to see how far reaching the decision in the case of Whittlestone will be."