A recent ruling by the Supreme Court (Royal Mencap Society v Tomlinson-Blake) has established that where a worker is paid a flat shift rate (or an allowance) for a sleeping night, when they are awake and working for any period of that shift, they should be paid no less than the national minimum wage for those hours, in addition to the shift flat rate (or allowance). We have set out below a summary for your information.
A support worker who spends any time ‘awake for the purposes of working’ during the course of a sleeping night shift is entitled to be paid for every minute of that time at no less than the NMW rate, in addition to the flat shift rate (or allowance).
This could result in a worker being paid the flat rate (or allowance) plus an hourly rate for the whole shift if he/she was ‘awake for the purposes of working’ for the whole shift.
The Supreme Court clarified that sleeping night allowances are not pay/wages, as such, but are compensation given to support workers for the inconvenience of having to spend nights at their employer’s house rather than in their own home. The Court also made it clear that sleeping night allowances do not count towards the worker’s NMW calculation.
That said, the decision has confirmed that the practice of paying support workers a flat shift rate amount (or allowance) for sleeping night shifts is perfectly lawful and that it does not matter if the amount of the allowance is less than the equivalent of what the worker would be entitled to be paid if he/she was to be remunerated for the whole shift at the NMW rate.
Clients whose current practice is to pay a flat shift rate (or allowance) to their workers for sleeping night shifts but to pay them for the whole night shift on an hourly rate (NMW compliant) basis if they are required to get up and work on more than XX occasions (or for more than YY hours in total) during the course of the shift, now find themselves exposed to the risk of NMW breach complaints or claims.
This is because under this type of arrangement if a worker is called upon to work during the course of a particular sleeping night but the number of occasions he/she is called upon is less than XX (or he/she has to work for less than YY hours in total), there will be a breach of the NMW legislation if he/she is not paid anything (over and above his/her sleeping night allowance) for doing that work. With this type of arrangement there is also a risk of workers bringing complaints of historical NMW breaches (coupled with back claims for under-payment of wages).
Left unchanged, the current practice of paying a flat rate (or allowance) for a sleeping night shift, with the additional cost of paying at least the NMW rate for the hours the support worker spends ‘awake for the purposes of working’, could result in a greater financial burden than simply paying the worker for the whole sleeping night shift at the NMW rate.
If you would like to discuss this subject further, please contact Cecily Lalloo at Embrace HR Limited.
T: 01296 761288 or contact us here.
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Based in Aylesbury, Buckinghamshire, Embrace HR Limited provide a specialised HR service to the care sector, from recruitment through to exit.