The National Minimum Wage Regulations 1999 (NMWR) state that salaried hours workers are entitled to be paid the minimum wage when required to be available for work or be near their place of work. In Wray v JW Lees & Co Ltd, the Employment Appeal Tribunal (EAT) said, however, that for the purposes of a minimum wage claim, salaried workers who have to sleep over at work but who do not have to do any work, are not entitled to the NMW for that time.
Basic facts
As a condition of her employment as a temporary manager, Ms Wray was provided with free accommodation and was required to “reside and sleep” there each night, unless the Area Manager agreed she could be absent.
In October 2008 she started work at the White Hart in Mottram but was dismissed by reason of redundancy in May 2009. She claimed that the company had failed to pay her the national minimum wage.
She received £325 per week gross for 42.5 hours, giving an hourly rate of £7.65, comfortably above the minimum wage. However, she said that she worked far more hours than that and that she was entitled to be paid for the hours when she was required to be at the pub overnight.
Tribunal decision
The Tribunal decided, in error, to apply the definition of working time from the Working Time Regulations 1998, rather than the National Minimum Wage Regulations.
On that basis, it said that the “night work” was not working time because she was not at her employer’s disposal. The pub was shut which meant there was nothing to do, unless someone broke in, in which case she just had to ring the police. Ms Wray was also not required to stay in every minute of the day while at work.
Relevant law
Regulation 16(1) of the NMWR states that when a "worker is available or near a place of work for the purposes of doing salaried hours work and is required to be available for such work" this should be treated as being "working hours" for which the NMW should be paid.
Subsection 1A, however, states that in relation to "a worker who by arrangement sleeps at or near a place of work and is provided with suitable facilities for sleeping, time during the hours he is permitted to use those facilities for the purpose of sleeping shall only be treated as being salaried hours work when the worker is awake for the purpose of working."
EAT decision
The EAT said that it was obvious that although Ms Wray was required to sleep at the premises, she was not required to do any work, unlike, say, a night-watchman or a night-sleeper in a residential care home who is required to perform certain tasks during the night.
It was true that if something untoward occurred, such as an attempted break-in or a fire, Ms Wray would have been expected to deal with it by calling the emergency services. “But that very limited degree of responsibility is, as we have said, different from the responsibility falling on a manager in a hotel or a night-sleeper in a home for the disabled”.
She did not therefore qualify to be paid the NMW and her appeal failed.
Comment
If a worker is required to sleep over at work and undertake responsibilities such as care for a service user, then they are probably entitled to be paid for that work. If they are paid below the NMW for each hour worked, then they must bring the claim under the NMWR and not the Working Time Regulations.
It is important to consider that if a worker is paid additional sums to their salary should they work overtime, they may be able to pursue a claim for unlawful deduction from wages if they weren’t paid for the whole sleep-over but were expected to undertake some duties.
A worker who simply happens to sleep at their place of work, but is not required to perform work during that time is unlikely to succeed in a claim under the NMWR.