You may or may not be aware that the law on payment for sleep-in shifts has changed frequently over the last few years.
Historically care providers would pay staff a flat fee for sleep-in shifts of around £30. This changed in 2014 when an Employment Tribunal ruled that sleep-in shifts should be paid at the National Minimum Wage (NMW) for the entire shift, in circumstances where staff were not free to leave the premises. This ruling was subsequently enforced by HMRC when dealing with employers who were not paying the NMW.
ILS changed its terms and conditions for staff immediately in 2014 and has paid the NMW (or National Living Wage (NLW) as it is now known) for a whole sleep-in shift for the last 4 years.
In July 2018, the Court of Appeal in London (the second highest court in England and Wales) ruled flat-rate payments were fair, meaning sleep-in shift care workers could receive the full rate only for those hours during which they were awake and assisting service users.
Despite the court ruling, ILS has decided that it will continue to pay the entire sleep-in shift at the National Living Wage rate or at the staff member’s normal rate of pay if they are awake for more than 2 hours due to service user needs.
We feel it is important to pay staff the NLW for sleep-in shifts because in our view, despite staff being asleep, they are at the care home for a specific reason to meet the needs of service users which has been agreed in the service user’s support plan and risk assessment. Staff are also not free to leave the premises during the sleep-in shift and so in our view they are working, despite being asleep.
Trade unions and care providers have now called on the government to issue robust legislation and guidance on payment of the NLW in the care sector. We will continue to monitor the situation and provide staff with information at the appropriate time.