- Is the “sleep-over shift” overtime?
- Is the “sleep-over shift” part of their normal contractual agreement?
- Is the “sleep-over shift” incorporated into their salary?
- Is the employee allowed leave the premises of their own accord?
- Are employees under the strict instruction of the employer?
- Would it be more efficient to operate an on-call policy rather than a sleep-in policy?
A recent UK decision will be noted with interest by employers in the medical care sector. The case concerned the question of whether employers that operate sleepover arrangements are required to pay overnight workers the national minimum wage for time spent at their place of work which is not time spent working.
Current position
In the 2014 case of HSE -v- IMPACT, SIPTU, & UNITE (LCR20837), the Labour Court issued a recommendation that sleepover workers must be paid the national minimum wage for each hour spent on sleepover in excess of the 39 weekly hours they were contracted to work.
Similarly, the European Court of Justice in Jaeger (C-151/02), found that where a person is required to be physically present at the place of work then this must be regarded as working time, even in circumstances where the person can sleep/rest during periods when they are not carrying out their duties.
As sleepover time is currently deemed working time for the purpose of payment of the national minimum wage, sleepover time is also used to calculate rest breaks and accrue annual leave.
Mencap decision
In July this year, the UK Court of Appeal ruled in the case of Royal Mencap Society v Mrs Tomlinson-Blake that the employer is not required to pay the national minimum wage to sleepover employees.
At the hearing of first instance, the court found that sleep-in shifts in a care setting were ‘working time’ and subject to payment of the national minimum wage. The court ruled that, due to the nature of Mencap’s sleep-in arrangement, the care worker was working simply by being present.
The entire shift was, therefore, working time and subject to payment under the UK’s national minimum /living wage legislation. The case reflected the position which is in place in the Republic of Ireland and the rest of the EU.
Court of Appeal finding in Mencap case
The decision was successfully appealed by Mencap. The Court of Appeal stated that “sleepers-in... are to be characterised for the purpose of the regulations as available for work... rather than actually working... and so fall within the terms of the sleep-in exception. The result is that the only time that counts for national minimum wage purposes is time when the worker is required to be awake for the purposes of working."
National Minimum Wage Act
Payment of the national minimum wage in Ireland is governed by the National Minimum Wage Act, 2000 which states that “‘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”.
Employers must, therefore, be mindful that if employees are required to be at the place of work, this will trigger payment of the national minimum wage.
Will the UK decision impact on Irish employers?
The Mencap decision may be persuasive if an employer disputes the current sleepover position before the Irish courts. Before deciding on the merits of bringing a comparable case before the Irish courts, employers should consider the following:
