Can I pay less than the National Minimum Wage for Sleeping Nights?

18 March 2019

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Can I pay less than the National Minimum Wage for Sleeping Night Care?

In a word…YES! (But not always…)

There has been huge confusion for the last few years around whether or not a carer working a sleeping night is entitled to be paid at least the National Minimum Wage (NMW) for each hour.

Initially the government stipulated sleeping carers should be paid NMW, and even declared that back pay going back 6 years, should be paid to those who had historically had been paid under the NMW. MENCAP took up the fight against back payments, arguing they and many other charities and companies simply didn’t have the funds and would fold if forced to pay; leaving their clients without essential support.

MENCAP won the fight against back payments and the ruling changed so that carers genuinely sleeping, did not have to be paid the NMW. Even after all this, Snap were still advised by ACAS in 2018 to state Sleeping Night Rates should be paid at NMW. Their reasoning was that the ruling was being challenged and could change again, and that because the campaign was featured so prominently in the news, carers would expect at least NMW.

However, when we looked into this again (March 2019), we found this stated on the government website:

‘Workers who are expected to sleep for most of a sleep-in shift will get the National Minimum Wage only when they are woken up to perform tasks. They must be given somewhere suitable to sleep’.

A call to ACAS confirmed that a Sleeping Allowance can be agreed when someone is able to go to bed, is provided with suitable facilities (a bed!) and should expect to sleep except if there is an emergency or unanticipated situation that requires their assistance. While any rate can be set for the Sleeping Allowance, should the carer be woken and attend to the client, all the hours in that shift must be paid at the National Minimum Rate.


An Example

Our fictitious client John has an Acquired Brain Injury. He sleeps soundly each night and can get himself to the bathroom if needed. If however, something unexpected happened, such as a burglar alarm going off, a fire, a water pipe burst or John unexpectedly became unwell, he would likely wake confused, disorientated and unable to cope with the situation and need support.
 

Payments

John agrees a Sleeping Allowance rate of £40.00 a night for an 8 hour shift with his carer, Simon. Months go by and he needs no assistance at night as expected. John goes to bed one night feeling fine, but during the night wakes with a temperature and starts vomiting. He calls to Simon who then assists John for the next 3 hours. In this situation, Simon must be paid at least the NMW for the total shift (8 hours), which from April 2019 will be £8.21, so £65.68, an additional £25.68.

 

Snap’s Thoughts

When we started Snap back in 2001, we recommended a rate that was typically higher than other companies. We wanted to attract candidates who provided more than the basic care needs; people who would support our client’s development, independence and rehabilitation, and that’s just what we did.

When someone is working with a client it is a rewarding but demanding job and people’s pay should reflect that. If however, someone is genuinely asleep and only called on in an emergency, it doesn’t seem appropriate to expect clients and families to pay what they would for direct care.

Paying the NMW for every hour is unaffordable for many clients and families. Most people sleep 8 hours each night, that’s 8 x 8.21, £65.68 a night or £459.76 a week. £23,907.52 per annum. Plus Employer’s National Insurance Contributions, plus potentially pension contributions...

We know many carers who will be happy to go to sleep and earn £40.00 a night. This type of job is ideal for students for example.

 

Clarifying Night Roles

At Snap, we believe the problem is the clarification and definition of night roles. Carers are being told a role is a Sleeping Night (or ‘Sleepover’ nights as some people call them), when actually the client is likely to need attending to 2 or 3 times each night or most nights. Our definition of this, is an On-Call Night. (Confusingly, often called a Sleep-In Night…).

If a carer has attended to the client 2 or 3 times during the night, that’s a pretty disturbed night.

We recruit for 3 types of night roles. We think it’s helpful to use (only!) these terms; they accurately describe the role:

1.      Waking Nights
2.      On-Call Nights
3.      Sleeping Nights

Waking – the carer is awake for all the hours worked, just as if it were daytime

On-Call – the carer is ready, on-call, to attend when needed maybe 2 or 3 times most nights.

Sleeping – as described above, asleep, there just in case…

If the role is clearly defined, everyone knows what is expected of them and what they can expect in return. Being able to negotiate a Sleeping Allowance will enable more people to have the reassurance of having someone there for them should they need it.

Now if everyone could please use our night titles…
 

Useful Links:

Gov.UK Night Working Hours
More Snap info on defining night roles
MENCAP
National Minimum Wage

Comments

I’m looking for some advice for myself and colleagues, our employer is trying to force us to work sleep ins shortly where we have no separate bathing facilities from the service users. In theory they want us to use the same bath or shower and toilet as the service users. I work with teenagers where it is not uncommon for them to have sexual diseases, foot and mouth, ring worm, and god know whatever else? Needless to say we’ve sought our unions advice and it’s going to become pretty heated come Monday when our union acts on our behalf! Can anyone give guidance in terms of what bathing facilities are deemed reasonable for us to argue our stance? Cheers Simon
Posted on Saturday, August 17, 2019 09:46 by Simon Wilson
I work as a private companion for a friend generally between the hours of 9 am to 5 pm for £12 an hour. I’m self employed. I have been asked to cover a sleeping night occasionally while the husband is away. You describe it as an eight hour non waking shift for £80 ( that’s £5 an hour). I am happy with that. My question is what should I charge/be getting for the remaining hours in the day. Ie from 5 pm to 11 pm and from 7am to 9 am the next day? Any thoughts? I work in Berkshire
Posted on Tuesday, June 18, 2019 13:29 by Barbara

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