Branch Secretary : suz.muna.unite@gmail.com
  

When 'sleep-in' time counts!

In supported housing the question of working hours has been hotly debated.  Here is a guide for reps and members cross posted from Unite for our Society.

 

Working time and 'sleep ins'

 

When it comes to looking at a worker's working hours, there are two different sets of regulations. Firstly there are the Working Time Regulations which set out the rules regarding rest breaks, daily and weekly rest, maximum weekly working hours and, of course, minimum annual leave. Secondly there are the rules regarding National Minimum Wage (NMW) which deal with what constitutes 'work' and therefore attracts NMW.

 

These two sets of regulations don't always match up, and this can cause confusion. Unite has prepared a briefing paper for its members – ‘Sleep In & Travel Time Cases’ which is detailed below.

 

1. Sleep In Cases

Members may be able to count time spent sleeping whilst on duty at specific premises for the purpose of calculating whether they are being paid the National Minimum Wage. Being able to count ‘sleep in’ time in this way makes it more likely that a member is not being paid the National Minimum Wage.

Law

There is a distinction between cases where being present is itself part of the job the individual is required to do, and those where the worker is genuinely “on-call”. In the former situation, the worker is more likely to be able to count ‘sleep-in’ time for the purpose of calculating whether the NMW is being paid. This distinction is not always easy to make, but the points below identify what you should look out for.

Key Factors

A worker is more likely to be able to count ‘sleep-in’ time for the purpose of the NMW where:

  • There is a legal and/or regulatory requirement for an individual to be on the premises for the whole of the shift.
  • There is no other person on shift who could perform the duties of the worker if so required in the course of the ‘sleep-in’.
  • The worker is required by the employer to remain on the premises for all of the ‘sleep-in’ period; and
  • The worker would be disciplined if he or she left the premises during the sleep-in period.

If any one or more of the four factors set out above accurately reflects the position that the member is in, then they may be “working” for the whole period of the sleep-in for the purposes of the National Minimum Wage. On this basis if you aggregate all the hours that the member works in any given week, including the hours they spend on sleep-in duties and it falls below the applicable National Minimum Wage rate the case should be referred to Legal Services..   

 

2. Travelling Time Cases

The issue of travelling time typically arises where a member travels between assignments, often when going to visit a variety of service-users in the care sector. This time often constitutes ‘working time’ for the purposes of both the National Minimum Wages Regulations and the Working Time Regulations and Unite is concerned that this is not always recognised by employers.

Law

The general presumption is that time spent travelling, where the worker would otherwise be working, will be treated as ‘working time’ except where the travel is between the worker’s home and a place of work.

Key Factors

Key factors pointing towards travelling time counting as ‘working time’ for the purpose of the NMW and the WTR are if:

  • There is a requirement to be travel between service-users and the worker is not paid for that travel.
  • The employer has responsibility for the worker’s rota and determining which service users they are required to see and when.
  • The travelling time is insufficiently long to enable the worker to return home between shifts.

If all of these factors apply then members are likely to be able to count the travelling time as ‘working time’

 

For more information please email Siobhan.endean@unitetheunion.org

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