The national minimum wage was introduced in 1998. It was welcomed by some and despised by others.Whatever you thought of the labour manifesto back in 1997, the national minimum wage is here to stay, with the fifteen year anniversary of its implementation passing us by just last month.
Failure to pay the national minimum wage has severe consequences for employers who could face being ‘named and shamed’ by BIS in addition to dealing with claims from the underpaid employees.
Some employers have been hit with these sanctions in situations where the employee could only loosely be described as ‘working’ in the literal sense of the word, as was examined in the Employment Appeal Tribunal (EAT) last week.
Esparon T/A Middle West Residential Care Home v Miss L Slavikovska
The issue in this case revolved around whether time spent sleeping on a shift amounted to working time, which would then attract the minimum wage requirements. The employer, a residential care home, was of the view that it was not and believed that it was entitled to pay a flat rate below the minimum wage to employees for each ‘sleep-in’ shift.
There was a dispute between the parties as to whether or not the employee actually worked or simply slept during this time. However, the EAT suggested that it was irrelevant whether or not the employee was physically working or sleeping. Having examined the regulations pertaining to care homes and concluding that the employer was required by law to have a certain number of persons on site at all times, the EAT found the employee was deemed to be ‘working’ even though she may have been asleep for this time.
This decision on what constitutes ‘working time’ strengthens the existing case law that provides for minimum payments to employees even in circumstances where they may not technically be working. The implications of this decision mean that any employers who require employees to be physically on site due to statutory requirements should pay the minimum for this time, regardless of the work output produced by the employee. Other care homes will certainly come under its remit, but it could also have some implications for hotel staff, housing management organisations or pub landlords who have live-in accommodation.
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