Slavikovska was employed as a care worker at the Respondent’s residential care home. She was required to work a number of ‘sleep-in’ night shifts and be available for emergency purposes. There were also statutory provisions that required the employer, for example to ensure that at all times suitably qualified, competent and experienced persons were working at the care home in such numbers as are appropriate for the health and welfare of service users.
Slavikovska maintained that she was required to carry out certain duties during the night shift whereas the Respondent maintained that she was not required to carry out any duties save in case of emergencies and was permitted to sleep in the facilities provided. Slavikovska received a lump sum for each sleep-in shift, but this was at a rate substantially less than the hourly rate of the National Minimum Wage.
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.
Employers who have a statutory duty such as this may be exposed to tribunal claims for unlawful deduction of wages. Of particular concern for employers 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, 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.