VNJ Articlescareersemploymenthr
23 August 2022
Night working and National Minimum Wage and how the (final?) decision was made by Nicky Ackerley
Many Veterinary Nurses have to work nights at some point in their working life and also spend time being on call at night but being allowed to sleep between calls, either in their own home or at the Veterinary Practice where they work.
A case was recently brought by 2 employees of Care Companies, one of who was employed by the learning disability charity Mencap and a decision in 2018 by The Court of Appeal ruled that sleeping on call should be paid at the National Minimum Wage, however the charity sought to overturn this ruling (based on the enormous financial costs that would be incurred by care companies in back pay) and the decision by the Supreme Court has finally given some clarity on what has been a complex and difficult issue for some time. Although the case concerned two care workers, the decision affects everyone who is on call sleeping at nights for their employer, whatever their line of work.
The legal position of being ‘on call’ at work and whether this is counted as ‘working time’ has been complicated and challenged over recent years. The recent (March 2021) legal decision is that: The Supreme Court found that only the hours workers are ‘awake for the purposes of working’ should be counted for NMW purposes. So, time sleeping, or awake but not working, should not be counted.
The Supreme Court (the highest court in the land) explained that The National Minimum Wage Act 1998 was intended to give effect to the recommendations of a report by the Low Pay Commission which recommended that ‘sleep-in’ workers should receive an allowance and not the National Minimum Wage. The government had accepted this recommendation.
The court also said that this decision may not be applied to all ‘sleep in’ shifts and there are likely to be many borderline cases. One of the key differences is likely to be if you would be expected to work for most of the night shift but with short lulls when you can sleep or if you can sleep most of the night but may be woken if required to undertake specific duties.
There are some important considerations:
• If you are ‘working’ through the night – the night hours will all be counted for National Minimum Wage calculation.
• If you are sleeping, or allowed to sleep, most of the night, only the hours you are awake and working will be counted for the National Minimum Wage calculation.
When you are calculating your hourly rate, you need to include your total pay in a reference period (this is how often you are paid) both the day and night hours to see if your employer is paying you correctly.
An employer does need to provide suitable sleeping arrangements for an employee who is sleeping on call not to be eligible for the National Minimum Wage.
The union Unison are continuing to campaign about this issue and argue that being on call at the employer’s premises, even if asleep, is working time, but for now at least, this is not the legal view point.
Author
Nicky Ackerley BA(Hons)
Nicky is the owner of HR Support Consultancy. She has a BA(Hons) in Business Studies, is a member of the Chartered Institute of Personnel and Development and has been a practising HR manager for more than 20 years. HR Support Consultancy has provided the BVNA Members Advisory Service (formerly known as the Industrial Relations Service) since it began in 2002.
Email: nickyackerley@hrsupportconsultancy.co.uk
DOI: 10.1080/17415349.2021.1948694
VOL 36 • August 2021 • Veterinary Nursing Journal