Live-In Care home worker must be awake to be working

The Employment Appeal Tribunal (EAT) has ruled that a night worker who lived in at the residential care home where he was employed was not entitled to be paid the National Minimum Wage (NMW) for hours when he was on call but asleep.

The care home assistant lived in a flat on site and was required to be on call between 10:00pm until 7:00am daily. He was permitted to sleep during those hours and, in practice, his services were rarely called upon. He also held down a day job as a driver and was paid only £90 a week for his work at the home.

He was dismissed after the home changed hands and an Employment Tribunal (ET) later upheld his unfair dismissal claim. He had also sought almost £240,000 on the basis that he had not received the NMW or holiday pay over an extended period, but those complaints were rejected.

In dismissing his challenge to the latter decisions, the EAT noted that he was entitled to spend the entirety of his shifts at home and was permitted to sleep throughout. In those circumstances, only time which he had spent awake for the purpose of working counted as salaried hours within the meaning of the National Minimum Wage Regulations 1999.

The ET was entitled to conclude that he had not worked throughout each night shift, but only on those rare occasions when he was called upon to assist the care worker on duty. His claim in respect of holiday pay also failed on the basis that he had been aware of his right to paid leave and had not been unable or unwilling to take it due to reasons beyond his control. In those circumstances, he was not entitled to carry forward holiday pay falling due prior to the holiday year in which he was dismissed.

Contact: David Hacker