Overnight accommodation

The NMW regulations include special rules for workers whose employers provide sleeping accommodation but do not require their employees to be at work during the hours spent sleeping. Regulation 15(1A) says that where a worker “by arrangement sleeps at or near a place of work and is provided with suitable facilities for sleeping, time during the hours permitted to use those facilities for the purposes of sleeping shall only be treated as being time work when the worker is awake for the purpose of working.”

This exemption from the requirement to pay the NMW for time spent sleeping in accommodation provided by the employer has nothing to do with the case of workers, such as the examples listed above, who are under the direction and control of their employer (i.e. “at work”) during the hours of work at night. Instead, it applies only to workers who are provided with sleeping facilities by the employer but who are not under the employer’s direction when using the accommodation (i.e. they are basically free to come and go as they please). These workers are entitled to be paid the NMW only for the hours when they are awake for the purpose of working.

The distinction between the two categories of worker is not always clear. In this context, Whittlestone v BJP Home Support Limited [2013] UKEAT 0128/13/1907, is an important new case for union reps (see page 100). In particular, the EAT in Whittlestone says that labels like “on call time” and “core hours” are not relevant when it comes to deciding whether someone is entitled to the NMW. Instead, the basic question each time is: Is the person contracted to work for the employer during these hours?

In Esparon t/a Middle West Residential Care Home v Slavikovska [2014] UKEAT/0217/12, the EAT confirmed that a careworker at a residential home was entitled to the National Minimum Wage for all the hours she spent sleeping on site, instead of the £25 a night she had been getting. The fact that she was rarely called upon to perform any duties during the overnight shift was irrelevant, ruled the EAT. She was there at the disposal of the employer, because the care home was under a statutory requirement to ensure that a competent person was present at all times. As such, she was working and she was entitled to the National Minimum Wage.

Also significant is the case of Autoclenz v Belcher [2011] UKSC 41 (see page 48). This case says that the wording of contract documentation is just one factor when deciding whether someone is contractually obliged to work. All the surrounding circumstances are also relevant, including the parties’ inequality of bargaining power.

Union reps need to make sure they do not confuse the NMW regime with that of working time and the question of “on call hours” (see Working hours and breaks, page 112). The time regime under the Working Time Directive is completely separate from that of the NMW (Wray v J.W. Lees & Co. Brewers Limited [2011] UKEAT 0102/1/1407).