Employment Law Update (Sept 2008)

Sleepover duties and the National Minimum Wage

The law on whether the National Minimum Wage (NMW) law applies to staff employed on "sleepover" duties is in confusion following a recent case in the Employment Appeals Tribunal (EAT). The case is important because other cases that go to an employment tribunal with similar circumstances are likely to be decided the same way. It is also the first important case that specifically involved sleepover duties at a care home.

Employers whose businesses offer residential care may employ a member of staff to do "sleepover" duties, either as part of a rota system or on a permanent basis. Often, the member of staff is paid a fixed amount per shift, plus wages at an hourly rate for any time they are awake and performing duties.

What the case says

The EAT decided that the NMW should be paid for all hours the employee was on duty, not just for the time he or she was awake and working.

Why is the law confusing?

Guidance on the NMW issued by the government has previously made it clear that the NMW did not apply to staff while they were sleeping, provided appropriate accommodation was provided and the contract of employment was clear. The case illustrates how important it is to get independent advice on what the law means to you, as an employer, rather than just relying on government guidance.