15 November 2018

The Department for Business, Energy and Industrial Strategy (BEIS) has released new National Minimum Wage guidance that withdraws the legal rate from care workers on sleep-in shifts.

Updates to the document have come after the Court of Appeal overturned a decision that care workers should be paid the National Minimum Wage when working overnight.

The new guidance states: "In some sectors – including, but not only, the care sector – workers are required to stay at or near their workplace on the basis that they are expected to sleep for all or most of the period, but may be woken when required to undertake work. Such shifts normally occur at night, but could occur during the day.

"If the employer provides suitable facilities for sleeping, minimum wage must be paid for time when the worker is required to be awake for the purpose of working, but not for time the worker is permitted to sleep. However, if suitable sleeping facilities are not provided then minimum wage must be paid for the entire shift.

"The position is different where workers are working and not expected to sleep for all or most of a shift, even if there are occasions when they are permitted to sleep (such as when not busy). In this case it is likely minimum wage must be paid for the whole of the shift on the basis that the worker is in effect working all of that time, including for the time spent asleep."

Unison has lodged an appeal with the Supreme Court to assess the legality of the Court of Appeal's judgment. The guidance states that any new decision is not expected to be made before 2019 or possibly 2020.