How is N.M.W calculated when you do a mixture of Salaried and Time Work (Sleep-ins)?

Tunstallstoven

Hi all

I have been reading up about sleep-ins in care homes and how they should be paid. I've got my head around most of the issues, and have read summaries of some of the case law. As I understand it, if it is a legal requirement for you to be on the premises and you are not free to leave should you wish to, you are classified as working even if you are sleeping. And NMW therefore applies.

What confuses me is how to calculate NMW... There are these pages by Unite:

http://www.unitetheunion.org/uploaded/documents/June%202014%20Briefing%20Sleep%20Ins11-18274.pdf

http://www.uniteforoursociety.org/blog/entry/sleep-ins-and-national-minimum-wage-regulations/

which state that:

"Because sleep-ins do not constitute salaried work but rather, ‘time work’, hours and salaries cannot be averaged out and National Minimum Wage must be paid for each and every hour of the sleep-in."

More specifically, in this one....

http://www.unitetheunion.org/uploaded/documents/jan%2014%20sleep%20in%20briefing11-18599.pdf

....they cite the case law of Ms Kirugo V Turning Point Watford Employment Tribunal September 2009 and state that:

"The Respondent argued that if the claimant’s weekly salary was
added to the sleepover, and this was divided by the total number
of hours worked in a week, including the sleepover, then the
average figure of remuneration would have been above the
National Minimum Wage. The tribunal ruled that as the sleepovers
counted as time work not salaried work, this calculation was
irrelevant. The claimant was entitled the National Minimum Wage
for the 8 hours of the sleep in"

Does anyone know exactly how it is done?

Many thanks

getmore4less

Google the case to get further opinions.

Tunstallstoven

getmore4less wrote: »

Google the case to get further opinions.

I've tried and I couldn't find anything... In fact, Goggle only came up with 6 hits!

getmore4less

try

employment tribunal sleep in rulings

ohreally

The law entitles workers to the NMW for all the hours they are contracted to work personally. The fact that some of that work involves sleeping or watching the television is irrelevant to whether they should be paid for it. Someone who works a night-shift is entitled to the NMW for the whole shift. This is because the employer is entitled to exercise direction or control over the worker during the shift. If, for example, someone can be disciplined for failing to turn up for the shift or if they leave the premises without the employer’s permission, that person will be under the employer’s direction or control. The entitlement to the NMW is not affected by whether or not anybody disturbs the worker during the nightshift, or whether they are called on to carry out any tasks during the night.

For example:

• a night watchman was entitled to the NMW for the whole of his shift, even though he spent most of the time watching television because being at the premises was his work. The fact that he might be asleep or watching the TV for some of the time was irrelevant. If the employer wanted him to use his time more productively, it should have set him tasks to do while at work (Scottbridge Construction v Wright [2003] IRLR 21);

• a careworker required to do a sleepover shift at the home of a service user was entitled to the NMW for all the hours spent on the shift, regardless of whether her sleep was interrupted (Whittlestone v BJP Home Support Limited [2013] UKEAT 0128/13/1907);

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

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Tunstallstoven

@getmoreforless - thanks for the tip. I'll try that in the morning.

@ohreally - thanks for that, but to be honest that's stuff I'm already familiar and happy with. The question is not so much whether the sleep-ins constitute "Time Work" and that NMW applies, it is HOW the NMW is calculated, and whether you are entitled to the NMW for every individual hour worked (as Unite would have it), or whether all hours and pay have to be averaged out, and it is that averaged figure which must be above the NMW threshold.

Thanks to you both for the replies and the help.

dawyldthing

Most companies seem to be burying there heads in the sand about it as I queried it a bit ago with mine and they said it's not fully law apparently yet as the council couldn't pay the difference between what we get for sleep ins and what we would get hourly (it's around £45 difference to what I would get if paid hourly rather than for the sleep ins)

Tunstallstoven

Thanks for the reply dawyldthing....

I think you can still speak to your employer and/or raise a grievance if you feel you have a case. The question is (and this is where I am stuck) how do you know if you have a case if you don't know how NMW should be calculated? It's a tough one and I'm struggling to get a straight answer. Maybe that's because there isn't one....

Tunstallstoven

getmore4less wrote: »

Google the case to get further opinions.

getmore4less wrote: »

try

employment tribunal sleep in rulings

I've tried that but I still cannot find anything concerning the case law of Ms Kirugo V Turning Point Watford Employment Tribunal September 2009....

Danfuss

The ET case decision you are looking for (i.e. Kirugo) was just a first level Tribunal case and not therefore binding in precedent.

You would be better looking at later Employment Appeal Tribunal (EAT) cases such as Whittlestone v BGT Support Ltd and particularly Esparon v Slavikovska UKEAT/0217/12/DA.

Tunstallstoven

Hi Danfuss and many thanks for the reply

Danfuss wrote: »

The ET case decision you are looking for (i.e. Kirugo) was just a first level Tribunal case and not therefore binding in precedent.

Would you mind expanding on what you mean here?

Danfuss wrote: »

You would be better looking at later Employment Appeal Tribunal (EAT) cases such as Whittlestone v BGT Support Ltd and particularly Esparon v Slavikovska UKEAT/0217/12/DA.

I have read a fair bit concerning these cases (I've not read any actual case law docs). I guess I specifically wanted to read more on the Kirugo case because that is the one Unite refer to with regard how NMW is calculated when salaried AND time work is undertaken. I'm not sure about Whittlestone, but in the Slavikovska case I don't think the matter was relevant....

Many thanks