Care workers not paid for sleeping in

Many people would think that a care worker who has to do 'sleep in' shifts as part of their work would be 'working' for the full period of their shift. The care worker must be available to provide care at any time during their shift and this could, of course, involve being woken up a number of times during a shift to provide that care.

The Supreme Court recently had to decide whether care workers are entitled to be paid for their entire shift, including the time that they are asleep. The case revolved around various definitions of 'work' and 'hours' under the National Minimum Wage (NMW) Regulations.

The NMW creates a minimum wage threshold across the UK. Many people working in the care sector are paid at these rates and, interestingly, the Supreme Court acknowledged the societal context within which this case sits in that the court said that the NMW is of considerable importance to millions of workers in the United Kingdom and is 'part of the infrastructure of our democratic society'.

Despite this recognition, the Supreme Court overturned the earlier Court of Appeal decision and held that the NMW legislation contained an exemption applying to sleep in work which resulted in the decision that the hours the employee is permitted to sleep do not form part of the calculation of the employees' hours for NMW purposes.

The Supreme Court highlighted the distinction between 'working' and being 'available for work'. In terms of calculation of pay, the court concluded that:

'Only the period for which he is actually awake for the purposes of working is included.'

This may seem a harsh decision for the workers providing care support. However, if the decision had gone the other way, it would have resulted in many employers in the care sector, including charities, facing crippling claims for back pay.

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