Night shifts attract national minimum wage

The Claimant was employed at a residential care home looking after service users with learning disabilities. She was paid on the basis of a 35 hour week and in addition undertook a number of sleep-ins for which she was paid £25 a night. She was dismissed for gross misconduct which was subsequently found to be unfair but additionally she claimed that she should have been entitled to be paid the national minimum wage for the period of time where she was undertaking the sleep-ins.

The employer, using a similar defence to that in Whittlestone, argued that she was not required to perform work during the night and she was only on call. However as a matter of fact the EAT held that there was a statutory requirement for her to be present and that even if she was not required to undertake any actual work, there was a distinct possibility that she may have to. The fact that she was allowed to sleep during her sleep-ins was not relevant to the question at pay and it was found that she was in fact engaged on time work and therefore should have been paid the national minimum wage.

There seem to be quite a few of these cases floating around recently and they are likely to have a significant impact on the voluntary sector which employs individuals on an hourly paid rate basis to care for people with learning disabilities and mental and physical health issues who have the potential to require night time care.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.