Sleeping Nights: Wage Requirements Change...again

13 August 2019

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We recently wrote a blog about the National Minimum Wage and Sleeping Nights, but again, things have changed...
 
After a legal challenge by an employee who argued they should be paid the National Minimum Wage (NMW), the government decreed that anyone working in a night role should be paid at least the NMW for all hours they were on the premises, irrespective of whether they were asleep or actively working, and any underpayment would be backdated.
 
This was contested by MENCAP who argued many charities employing night carers wouldn’t be able to survive such back payments, and some employers would be unable to afford to pay NMW, leaving many people vulnerable or even unable to stay in their own homes.
 
MENCAP won their case and the government changed the requirements. As we reposted in our blog, a night worker could be paid an agreed sleeping allowance per night, but if they were woken, even once, they would need to be paid the NMW for each hour of the shift.
 
This information has been updated again, and the following is applicable, for now anyway!
 
'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'.
 
As in our initial blog, one of the points we feel is key is to correctly identify what kind of night you are employing someone to work.
 
  • A Sleeping Night (also called 'Sleep-in Night). The support worker should anticipate they can sleep all night, they are there in case of an emergency or an unpredictable event.
     
  • An On-Call Night. The support worker knows they are likely to be called upon a couple of times during the night and ensure they hear/know when they are needed, but otherwise can expect to sleep.
     
  • A Waking Night. The support worker, is awake all the hours they are scheduled to work and actively engaged throughout the night, just as if it were a day shift.
We hope this is the last change for some time; employers need to budget and understand what support is affordable for the long term and employees need to know what pay structures are appropriate. If the goalposts keep changing, that’s impossible to do.
 
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