case of Whittlestone v BJP Home Support Limited has brought into
question what workers should be paid if they ‘sleep over’ at their place of
involved an employee who was required to work 'sleep over' duties, during which
time she was never actually required to carry out any work, but was required to
remain present. She was paid an allowance for these sleep in duties,
which equated to less than the national minimum wage (NMW) for each hour that
she was required to be present. The employee brought a claim in respect of her
pay, which went to the Employment Appeal Tribunal (EAT).
The EAT held
that where an employee is required to stay in the place of the work, the fact
that the employee is required to be present at work amounts to work itself and
the employee should be paid at least the NMW for each hour she was required to
be present, even if the employee isn’t carrying out ‘actual work’ for the
entire time and is in reality able to sleep for the duration of the shift.
Prior to this
case, a distinction was drawn between a job where a worker’s core duties
required them to work at night (such as a night-watchman), entitling them to
NMW for the entire of the night shift, and a job where a worker is required to
be at the place of work ‘on call’ in addition to their core duties during the day,
only entitling them to NMW for the time they are actually working.
scope for the case to be appealed, though this is looking unlikely.
Distinctions could also be drawn in future cases where workers’ time is
considered ‘unmeasured’ under the National Minimum Wage Regulations 1999.