The Department for Business, Innovation and Skills (BIS) has updated its guidance on calculating the National Minimum Wage (NMW) for employees who sleep between duties. In order to consider whether the individual’s “work” amounts to working time for the purpose of the NMW.
BIS has stated that “employers must ascertain whether a worker is still subject to certain work-related responsibilities whilst asleep, to the extent that they could be deemed to be ‘working’.”
BIS stated that:
- A worker may be found to be “working” even whilst asleep if, for example, they would face disciplinary action if they left the place of work.
- This is different to when the worker is available for work, as opposed to having to be there for specific work–related obligations whilst asleep with facilities provided..
To make this clearer, the BIS has given the following examples of when the NMW is likely to apply and when it isn’t.
Example 1 – where the NMW is likely to apply
“A person works in a care home and is required to work overnight shifts where they sleep on the premises. The person’s employer is required by statute to have someone on premises for health and safety purposes. The person would be disciplined if they left the premises at any stage during the night.
It is likely that the person would be considered to be ‘working’ for the whole of the overnight shift even when they are sleeping.”
Example 2 – where the NMW is unlikely to apply
“A person works in a pub and lives in a flat above the pub. The employer requires the person to sleep there. However the person can come and go as they please during the night as long as they do sleep there. There are no specific responsibilities during the evening rather the person sleeps there so the flat is occupied i.e to reduce the likelihood of the premises being burgled.
The person is likely only to be entitled to the NMW when they are awake and dealing with any emergencies in the night.”
Further information can be found at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/422560/bis-15-169-calculating-the-minimum-wage-SL160415.pdf