Date 1 July 2010
Employers that run residential establishments such as care homes find that a cost-efficient way to cover a 24-hour operation is a shift system under which workers “sleep in”. They are commonly paid only a nominal shift allowance rather than a higher, hourly rate. But unions are making working time and unlawful deduction of wages claims for sleep-in shifts. In light of a series of rulings last year, firms should ensure that they understand the risks.
Is a sleep-in working time?
Workers should have 11 hours’ rest in any 24 hour period. Time spent on an employer’s premises for a standard sleep-in shift count as working time. Organisations providing essential 24 hour care should be exempt from daily rest requirements, although they still have to provide workers with “compensatory rest”, which should be taken as soon as possible after a shift’s end.
Many workers in these sectors prefer to work shifts together, so the pattern of late shift, sleep-in and early shift is common. But this is likely to breach the Working Time Regulations 1998, as there is rarely an operational justification for the worker to stay on for the early shift. Employers could comply with the regulations by allowing workers to take the compulsory rest period at the end of their sleep-in shift.
Should sleep-ins be paid at the national minimum wage rate?
Current case law suggests that they should be, although this could change if an appropriate case reaches a higher court than the Employment Appeals Tribunal and the relevant decision is overturned (see Burrow Down Support Services v Rossiter, UKEAT/0592/07).
Workers are rarely engaged for sleep-in shifts only. To calculate the amount owed, employers should take the total earned in a one month pay reference period and divide that by the number of hours worked, including the sleep-in shifts. The shift allowance can also be included in the calculation. Using this calculation means that most workers will be paid more than the minimum wage overall, so they will have no claim in this respect.
How can employers mitigate the risks?
A risk assessment using this calculation to confirm that workers are being paid the minimum wage is crucial, as is identifying whether anyone is likely to slip below the legal pay floors. Where anomolies exist, employers should rectify the situation.
Unlawful-deductions-of-wages claims, which are used for minimum wage underpayments, must be lodged with a tribunal within three months of the last deduction. All workers who put in more than 48 hours a week, with sleep-ins, must be asked to sign a waiver under the rules saying that they agree to work longer than the legal maximum week.
Enforcement
Assuming workers are happy with their shift patterns and are not being forced to give up their compensatory rest periods, then the employer risks only a breach of the regulations rather than a tribunal claim.
If alerted to a breach, Health and Safety Executive officials would visit the employer and issue an enforcement notice if the breach were confirmed. Non-compliance could lead to criminal proceedings and a fine. But employers are given a chance to rectify the breach before this happens.