Backdated claims of this type could have significant cost implications for employers
In the recent case of J Esparon t/a Middle West Residential Care Home v Slavikovska, the Employment Appeal Tribunal found that a senior care assistant who carried out sleepover shifts was entitled to receive the national minimum wage for all her nights shift hours, regardless of whether or not she was actually working during that time.
Facts
Slavikovska worked in a residential care home where her role as a senior care assistant involved looking after residents with learning difficulties. She was resident at the care home and worked during the day. She also worked a sleepover shift from 9pm until 7am the following morning for which she was paid £25.
Slavikovska’s evidence was that she did a variety of duties during the sleepover shift and that she was not allowed to sleep. The residential care home disputed this and gave evidence that Slavikovska was able to sleep on site but had to be available for emergency purposes.
Tribunal
The employment tribunal found that Slavikovska was required to be on the residential care home’s premises throughout the sleepover shift and that she could be required to undertake a variety of duties during the shift. The tribunal accepted Slavikovska’s submission that whether she was allowed to sleep during the shift or not was irrelevant. It concluded that Slavikovska was entitled to receive the national minimum wage for all her night shift hours and that paying her less than that amounted to an unlawful deduction from wages.
EAT
The EAT reaffirmed the tribunal’s decision and concluded that Slavikovska had in fact been working during her night shift and that she was entitled to the national minimum wage, even if she had been asleep for the entire shift.
An important consideration for the EAT was why the residential care home required Slavikovska to be on the premises overnight. The EAT concluded that since the residential care home had a legal obligation to have a person with Slavikovska’s qualifications on site at all times, she was being paid to satisfy this requirement. Her mere presence was therefore enough to constitute working time for national minimum wage purposes.
Comment
The Esparon case has significant implications for employers, particularly those in the care sector, who have a regulatory or statutory requirement to have qualified persons present during sleepover shifts and who are not currently paying such employees the national minimum wage. Employers in this position may be exposed to tribunal claims for unlawful deduction of wages. Of particular concern for employers for is that this type of claim can be backdated for a lengthy period. So the potential cost implications for employers who are unsuccessful in defending such claims may be substantial. Small hourly underpayments can quickly add up, and in the Esparon case the residential care home was ordered to pay Slavikovska approximately £15,000.
Also of concern for employers is that the government recently increased the financial penalties for employers who fail to pay national minimum wage. With more government proposals in the pipeline to raise penalties for national minimum wage abuse even further, the potential liability for employers could increase dramatically.
That said, it is important to bear in mind that every case is fact sensitive and that there have been a number of conflicting decisions over the years over what amounts to working time. In circumstances where there is no regulatory or statutory requirement for employees to be on the premises overnight, there will be more room for employers to argue that sleepover shifts do not amount to working time for national minimum wage purposes.
Gillian Mair is a senior solicitor in the employment team of Brodies LLP
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