Sleep in Allowance is so unfair!

Nebulous2

Bigbobby wrote: »

Oh and it is interesting to note as well that time spent asleep is actually technically classed as "working hours". Clearly based on the number of sleeps I do on top of day shifts my employer is breaching the 48 hour rule. I have not even signed out an opt out agreement.

How many do you do? Have you tried adding up all your hours to see if you are still over NMW counting your sleepover hours?

sweetilemon

The company I work for pays normal rate for waking nights but £30 for a sleep in. I think its fair, if we are needed, we charge for our time hourly. I think its fair, your 'on call' at your place of work, not working. If NMW was demaned, as others have said, there would be no benefit to paying people to sleep, waking nights would be introduced instead by a second shift of staff.

flashnazia

If you pay staff a lump sum (sometimes called a flat rate, or an allowance) for a sleeping night shift than you might be breaching the National Minimum Wage (“NMW”) legislation. A recent Employment Appeal Tribunal (“EAT”) case (Slavikovska) found that where there are minimum staffing levels requiring care workers to be on site, they were entitled to be paid the NMW.

The rules on whether sleeping night shifts constitute “working time” (entitling staff to the NMW) are unclear and the case law is contradictory. Generally, the more likely the employee is to have to carry out any tasks during a sleeping shift, the more likely the Courts are to find they are entitled to the NMW rather than just a lower allowance. This doesn’t mean they can’t be paid a lump sum for a sleeping shift, but that when their pay (including lump sums) is averaged over the prescribed (twelve-week) period, it must not fall below the NMW.

Court ruling
The most recent case involved a care home in Surrey for people with learning difficulties. It provides some clarity, and gives a helpful summary. The ruling went against the employer.

The care home was required by law to ensure the home was staffed at all times by sufficient suitably qualified, competent and experienced persons. The Claimant was a senior care assistant and was required to work some sleeping shifts (9pm to 7am), during which she would be available to deal with emergencies. She was paid a lump sum of £25 for working these shifts.

The question of whether or not the Claimant was required to do any work while she was on a night shift was disputed, but a separate important finding was made by the EAT: where an employer requires an employee to be on the premises “just in case”, the assumption would usually be that their time spent on shift is “working time”, regardless of whether they are sleeping and regardless of the likelihood of them having to carry out any tasks.

The EAT referred to (and is consistent with) the 2013 case of Whittlestone v BJP Home Support. This was another case concerned with the entitlement of a care worker to receive NMW rate for sleep-over shifts. The BJP case went a step further insofar as it also dealt with payment for travel time in between assignments – an issue which was highlighted by the media last year.

http://www.hempsons.co.uk/category/employment/

You can ring the pay and works rights helpline for advice about enforcement:
https://www.gov.uk/pay-and-work-rights-helpline

C_Mababejive

Another variation on the theme would be an employee who is peripatetic, and is required to be on a standby duty at certain times of the month. The Employer requires him to be at his home address and ready to respond immediately to any call out thus placing a certain level of restriction upon him doing his normal activities i,e socialising/having a drink/family activities.

What should he be paid?

adouglasmhor

C_Mababejive wrote: »

Another variation on the theme would be an employee who is peripatetic, and is required to be on a standby duty at certain times of the month. The Employer requires him to be at his home address and ready to respond immediately to any call out thus placing a certain level of restriction upon him doing his normal activities i,e socialising/having a drink/family activities.

What should he be paid?

Why not start a seperate thread for other, disimilar circustances?

C_Mababejive

adouglasmhor wrote: »

Why not start a seperate thread for other, disimilar circustances?

I considered it but as its similar and we are all gathered, i would throw it into the mix here.

adouglasmhor

C_Mababejive wrote: »

I considered it but as its similar and we are all gathered, i would throw it into the mix here.

There was a case a while ago where a lady in a remote Scottish house won an Employment Tribunal against a railway company as they sacked her for drinking (though not being drunk) in her own house, She operated a nearby level crossing gate at short call for a fixed fee and a standby allowance, and on the day in question had had a drink to celebrate a family members birthday. The rail company lost as it was considered the conditions were too restrictive for normal family life and if they wanted a zero alcohol policy they had to provide cover for off time.

Just something else to add into the mix.