A hot topic at the moment in Irish employment law centres on the question of overnight workers, such as junior doctors, in the medical/care industry. No doubt the entire country was more than aware of the kerfuffle with the HSE when the junior doctors were alleging that their overnight working and long shifts were in breach of working time and rest break legislation. A common question that arises concerns whether overnight workers are entitled to the National Minimum Wage in circumstances where they may not actually be working (e.g. sleepover) but are nevertheless required to be present at the place of work.
Sleepover Workers
As above, this type of worker is very common in the care industry, particularly the care of the elderly, where a worker sleeps over at either a residential home or the client’s home. This worker is effectively on call but is required to act should any incident occur. It is common practice that such workers would receive a shift rate but as they are normally asleep it has been common practice that this shift rate would work out as less than the minimum wage for the number of hours present. As an example:
- A shift rate for an 8 hour sleepover could be €50 for the night
- However, the National Minimum Wage is €8.65 and €8.65 x 8 hours = €69.20
Is this a breach of the National Minimum Wage Act? All evidence suggests that yes it is.
National Minimum Wage Act, 2000
The National Minimum Wage Act, 2000, states that an employee must receive the minimum wage for all working hours and defines “
working hours” as the “‘
total hours during which the employee carries out or performs the activities of his or her work at the employee's place of employment or is required by his or her employer to be available for work there and is paid as if the employee is carrying out or performing the activities of his or her work”. Given that sleepover employees are required to be at their place of work and be available for work points to a finding that such sleepovers would be deemed “working hours” which would attract at least the National Minimum Wage.
European Court of Justice
This question has been considered by the European Court of Justice in respect of other countries. In the
Jaeger case (C-151/02) the ECJ determined that such on-call duty where a person is required to be physically present at the place of work must be regarded as working time, even in circumstances where the person can sleep/rest during the times when their services are not required.
The Labour Court
There is no official Irish decision on this matter but the Labour Court case of
Slieve Bloom Tours -v- O’Reilly (MWD 9/2010) does provide some guidance on how such a case might go in Ireland. In this case a bus driver was not paid for periods of time between runs but was required to be in attendance at the bus and in charge of the bus during his break periods. The Labour Court decided on the basis that his presence was required meant that it was part of his working hours and thus should attract the minimum wage.
NERA/Workplace Relations
It is also worth noting that NERA (as it was then known) published a quarterly update in 2012 which stated that “
it is NERA’s view that the working hours of such employees are the entire period in respect of which of which they are required to be present in the place of employment and such employees are entitled to be remunerated for those hours at the statutory minimum rate applicable.”
Conclusion
Whilst there has been no official decision in Ireland as to whether or not sleepover employees are entitled to the National Minimum Wage, all indicators suggest that they would be so entitled. As such, it is advisable for all employers to provide at least the national minimum wage to such employees. This is not to be confused with workers who are on call but are not required to be at their place of work. The ECJ decided on this matter in
SIMAP (C-303/98) where they held that time spent on-call where the worker must be contactable at all times but where he or she was not required to be physically present at his or her place of work did not constitute working time.
This topic is one which can create a lot of uncertainty for employers so should you have any queries regarding on-call or sleepover workers please contact our 24 Hour Advice Service on 01 8555050 and one of our advisors will be happy to assist.
