Several businesses rely upon members of staff to be on call, with many organisations paying these individuals a flat rate or sometimes no pay at all for simply being on call. This presents a number of problems:
- Is the individual an employee or worker?
- When is the individual deemed to be working?
- Is the individual entitled to be paid the minimum wage?
- Can being on call or sleep in shifts be deemed to be working?
A typical scenario is an individual being required to be on call when their shift has finished, for example the end of the working day until the following morning. Increasingly, carers are called upon to work sleep-in shifts at a place of work, for example someone’s home. These individuals are paid when they are called upon during the night but may not be paid for simply being on call. The key issue is what is considered to be “working time” as that would entitle the individuals to be paid at least the minimum wage.
The issue of minimum wage is a significant matter as many people employed to work in the care sector are frequently paid on or around the minimum wage.
The infamous case of Royal Mencap Society v Tomlinson-Blake has recently been resolved in the Supreme Court. The case considered the issue of sleep-in shifts, i.e. where carers are required to sleep overnight at a property at which a vulnerable person lives and be on call if required to assist the individual.
Mrs Tomlinson-Blake was employed by the Royal Mencap Society for approximately 13 years, during which she and others employees provided 24/7 care to two vulnerable adults at their home. This required sleep-in shifts, during which Mrs Tomlinson-Blake would sleep at the property and listen out for emergencies. Mrs Tomlinson-Blake’s salary was based upon her hours of work, which disregarded the time she spent sleeping. Mrs Tomlinson-Blake argued that she was entitled to be paid whilst sleeping as she considered herself to be working.
The Supreme Court determined that sleep-in shifts are not considered to be work and therefore individuals are not entitled to be paid the minimum wage. In reaching their decision, the Supreme Court stated that it does not matter if the individual is required to follow the employer’s instructions to be present at a property to effectively sleep over. If they are called upon to provide assistance, they would be deemed to be working and entitled to the minimum wage. However simply being required to be on hand whilst asleep is not working.
Furthermore, the Supreme Court commented that the Law Pay Commission had not envisaged people sleeping would be deemed to be entitled to be minimum wage when they first proposed the National Minimum Wage Regulations in 1999.
These issues highlight the difficulties that employers have faced when assessing whether or not on call employees and workers are working for the purposes of the minimum wage.
Minimum wage cases are fact sensitive and therefore employers should review their pay arrangements where they require individuals to be on call to ensure there is no breach of minimum wage legislation. However this case does seem to put to rest any suggestion that a sleep-in shift for carers automatically qualifies for the minimum wage.