According to regulations, all workers must be paid National Minimum Wage (NMW) as an average for all hours worked.
As a care worker, this means you may be entitled to be paid NMW for every hour you work at a service user’s home – even while you’re asleep there.
A care worker was employed by the charity, Mencap. Her role included sleeping at a service user’s home so that she could assist them if something happened at night. She was paid £6.70 for each hour she worked during the day, and a flat rate of £29.05 for nine hours overnight.
In a recent appeal, the tribunal found that the care worker was entitled to be paid an amount equivalent to the NMW for the entire time she was on shift, including when she was asleep. This is because she had to use her professional judgement throughout the night about whether or not to intervene.
Every case is different
Of course, it’s more complex than that. The tribunal will have to consider:
- If you are staying overnight to comply with a legal or contractual requirement
- Whether your activities are restricted and you would be disciplined if you left the premises
- Whether you are there just in case of emergency or you are responsible for performing duties during the night
- Who is ultimately responsible for intervening and providing services if something happens
Two other care workers were employed by Mencap to fulfil the Care Quality Commission requirement to have enough suitably qualified, competent and experienced staff present. The waking worker was paid for all hours worked at night, and the sleeping worker was paid an allowance of £25 each night.
In this case, the tribunal decided there was insufficient information to determine whether the sleeping worker was entitled to be paid NMW while they were asleep.
How does this affect you?
The NMW for those aged 25 and over is £7.50 an hour increasing to £9 by 2020 (or £10 if Labour wins the general election).
If your employer doesn’t pay, they may face criminal penalties and fines. Claims can be backdated for up to six years, and they might even have to pay you double back pay for that period.
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