Earn while you sleep?
The last couple of months have been a torrid time to be an employer in the care sector. First there was the Government’s unexpected announcement of the impending living wage; a decision that may cause chaos for many social care businesses. Later came the European Court of Justice’s decision that mobile workers’ travelling time – to their first job of the day and from their last job of the day to home – was working time. So far, so costly…..
Well, now comes a decision that is more on the side of the care home operator: Shannon v Clifton House Residential. Mr Shannon was employed as an “on-call night care assistant”. He lived at the home and was required to be at work from 10pm until 7am. Mr Shannon was able to sleep during those hours, but had to respond to any request for assistance by the night care worker on duty at the home. This very rarely happened in practice though. When he was dismissed Mr Shannon claimed that he was entitled to be paid the national minimum wage for all the hours he was at work, not just the hours he was awake and working. As the relationship went back many years his claim was for nearly £240,000.
The Employment Appeal Tribunal held that Mr Shannon was only entitled to be paid for the hours that he was awake and working. In doing so they relied on the fact that the National Minimum Wage Regulations state this is the case where employees live on their employer’s premises. The Employment Appeal Tribunal also said that the fact that there was another worker on site, and that Mr Shannon was rarely called upon to do any work, had to be taken into account.
This is a very fact sensitive area, so a case with similar facts may have been decided differently. Nonetheless this decision probably comes at a welcome time for employers.