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It is standard practice within the care industry, where 24 hour staffing is required, to operate a sleep in system. Typically, employers pay a nominal shift allowance, rather than a higher hourly rate. However, unions are bringing claims on behalf of their members on the grounds of unlawful deduction of wages in relation to sleep ins.
If an employee is on a sleep in shift, this is classed as ‘working time’, and under the WTR, workers should have 11 hours rest in any 24 hour period.
Organisations providing essential 24 hour care, should be exempt from daily rest requirements, but even so, they must provide workers with compensatory rest, which should be taken as soon as possible when a shift ends.
However, workers in this sector tend to work their shifts together, so it is not unusual for them to work the late shift, sleep in and then the early shift. But employers need to be careful that this does not breach the WTR by giving workers compensatory rest at the end of their sleep in.
Employers also need to ensure that sleep ins are paid at the rate of the National Minimum Wage according to recent case law and so employers need to calculate the rate of pay in a reference period to ensure that this is being met.
If employers do not ensure that these pitfalls are avoided, they could face tribunal claims from their employees and if the Health and Safety executive is alerted, they could be issued with an enforcement notice, non compliance of which could lead to criminal proceedings and a fine.
To avoid this, employers should carry out a risk assessment to ensure that employees are being paid the National Minimum Wage and that they are being given compensatory rest where appropriate.
