Page 24 - ELG1807 July Issue 459

FEATURE .

Don’t be

caught

napping

over

sleep-in

pay

Melanie Butler examines how the outcome of an Appeals Court case could
have serious implications for employers of staff who sleep on the premises

S ummer school season is upon us, but employers up to £20,000 per employee if schools for which we found data, only three
And there are problems.
they don’t.
the rules around staff sleeping-in at
Among the seventeen residential
work have changed.
Is the EFL industry aware of this?
The whole of the residential care
We checked out all the summer school
payment specifically for work at night.
sector in the UK is awaiting the outcome of jobs ad on Tefl.com for a two-week period mentioned nights. And none mentioned
an Appeals Court hearing to see if they are in June and downloaded job descriptions for In EFL terms, the staff most likely to be
going to have to pay HMRC an estimated considered to be working while asleep are
total of £400 million for not following the Our purpose was to house parents or similar welfare staff who
new rules. are primarily responsible for children.
So, what’s the catastrophic change? take a snap-shot of the A houseparent required to put children
Since an Employment Appeals Tribunal situation and make clear to bed, be on site and on call while they
judgement in April 2017, government sleep and then wake them up is likely
definitions of working hours have included to schools the main entitled to £516. 78 a week for this work
‘hours at work and under certain work- alone, before deduction of £7 a night for
related responsibilities even when workers problems they accommodation.
are allowed to sleep’. may face The highest figure we found quoted for
If a worker fits this description, they are house parents on duty for these hours is
entitled to £70.47 for each nine-hour night £575 week, before legal deductions. That
shift if they are aged 25 or older. teachers and/or house parents (or similar means that they are being paid just £58.22
For the purposes of National Minimum care staff) for seventeen schools. What for all the other work they are doing during
Wage Regulations (NMWR) the employer we found suggested that the EFL summer the week.
is to offset no more than £7 a night for schools knew nothing at all about sleep-in Not all sleep-in workers are entitled to be
accommodation, so the worker is entitled pay. paid when they are sleeping. Group leaders
to £63.47 a night for being on call, even if Our purpose in doing the research are excluded because they are employed by
they are asleep. was not to name and shame schools. We the travel agent.
This is not EU law. It comes under the understand that, since schools already pay And for other staff, there is the ‘fish and
NMWR, which are enforced by the HMRC. for board and lodging for their workers, chips rule’.
They don’t seem to care how many working paying them to sleep as might well make The rule comes from the court case
hours a member of staff does but they make many summer schools unviable. Whittlestone v BJP Home Support Ltd.
it the employers’ responsibility to ensure Our purpose was to take a snap-shot of (2013) which states that if the contract
that they are paid minimum wage for every the situation and make clear to schools the allows the worker, while on call at night, to
single one of them. And they can fine main problems they may face. ‘slip out for a late night movie or fish and
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