Time spent sleeping

An hourly-paid worker should be paid at least the NMW for all the hours they are contracted to work. This includes time spent sleeping. Here are some good examples showing how courts and tribunals approach this issue, taken from reported cases:

• It is the job of a night watchman to remain on the premises. The fact that some of the job duties involve sleeping or watching the TV is irrelevant to whether those duties amount to paid work (Scottbridge Construction v Wright [2003] IRLR 21).

• Home-based workers employed to answer night-time telephone enquiries as and when they came in were entitled to the NMW throughout the shift. It did not matter that they could do other things when not answering the phone — even sleeping — or how many calls they got. This is because their work was to be available to answer any calls made (British Nursing Association v Inland Revenue [2002] IRLR 480).

• A hotel manager required by his employer to sleep at the hotel several nights a week to respond to emergencies such as fire was entitled to the NMW for the whole shift. By being in the premises at his employer’s disposal, he was working (Anderson v Jarvis [2006] UKEAT 0062/05/3005).

• An hourly-paid careworker required to sleep overnight at a service user’s home was entitled to the NMW for the whole night shift. She was working throughout the shift. If she had left without permission, she could be disciplined or dismissed. The fact that her sleep was rarely disturbed was irrelevant to whether she was working (Whittlestone v BJP Home Support Limited [2013] UKEAT 0128/13/190).

• An hourly-paid careworker obliged to remain overnight at a residential care home because the law required the home owner to ensure a competent person was on hand at all times was entitled to the NMW for the whole night. Her flat rate payment of £25 was a breach of the NMWR (Esparon t/a Middle West Residential Care Home v Slavikovska [2014] UKEAT/0217/12).

By contrast here is an example of a case in which the worker was not entitled to the NMW while sleeping because he was not “working” during the night: