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In a speech at the Autumn 2023 Conservative Party Conference the Chancellor of the Exchequer confirmed that the NLW rate from April 2024 will be “at least £11” per hour, a significant increase from the current rate of £10.42. Understandably, your client will be concerned as to how they will afford this, and whether they will have to pass it onto service users during a cost-of-living crisis.
Sleep-in shifts, and why they’re (or were) a problem
Following various cases about pay during overnight sleep-in shifts, it is now settled that where a worker is on a sleep-in shift, expected to sleep and only have minimal disruptions, they don’t have to be paid for the time spent sleeping. Below we go through various examples that might arise in your client’s business, and how this rule can be applied:
Example 1: worker spending time awake but woken only occasionally to perform tasks
A worker is provided with sleeping facilities and expected to sleep most of the night, but keep open a “listening ear” for problems. They spend some of the shift awake reading a book for pleasure, although they could sleep if they preferred.
There is no entitlement to NMW while they are awake and reading or while sleeping, as in both cases they are not awake for work purposes.
Example 2: worker taking calls on a nightshift
A worker answers very occasional telephone calls on a nightshift and is expected to sleep in a suitable bed for most of the night between calls.
NMW is for the time spent awake for the purpose of answering calls and performing any other duties.
Example 3: worker permitted to nap during working shift
A security guard is permitted to take a nap in a chair between regular tasks. They are expected to be awake for the purpose of working for most of the shift.
They would likely be working and eligible for the NMW for the entire shift. Even when sleeping, on the basis that they have no suitable sleeping facilities, they would be eligible for NMW for the entire shift.
Example 4: worker woken to deal with emergency but not required
A care worker who is expected to sleep most or all of a night shift is woken to provide back-up for a colleague during an emergency. They get dressed and sit near their fellow worker, but are not needed and instead read the newspaper for an hour.
As they are “awake for the purposes of working” for that hour they would be eligible for NMW in that hour.
Example 5: worker woken frequently contrary to original expectation
A care worker is expected to sleep for most of the night. Initially the worker is woken only occasionally to attend to someone.
Only the period for which the worker is actually awake for the purposes of working is included in the minimum wage calculation.
However, over time, the nature of the shifts change, and the worker becomes persistently woken so that in practice little sleep is possible. It could then no longer be said that they are expected to sleep for most or all of the shift, and the worker would likely cease to be a sleep-in worker and become entitled to NMW for the entire shift.
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