We have a number of clients in the security industry and also the care business who frequently have issues over the national minimum wage. The national minimum wage clearly lays down rules in respect of what people are paid whilst working. That creates no difficulty. However, problems arise when employees are supposedly not working, i.e. they are providing security duties or care duties either at their own home or on client premises. Moreover, what happens where they can do other things whilst on call or are even permitted to sleep.
In these circumstances, even where employees are permitted to sleep, provided an employer can call on their services either to answer telephone calls or deal with clients or emergency situations as they arise, then, all of those hours count for purposes of the national minimum wage. It makes no material difference whether the employee sleeps throughout the entire period. If the employer can call on the employee’s services, then this constitutes time work under the minimum wage and they must be remunerated accordingly.
The Court of Appeal in the case of British Nursing Association v Inland Revenue has given consideration to whether or not the provision of a night service from home constitutes working time and suggests it is not the use of, but the availability of, the service that is crucial. Therefore, if you require employees to be on call, or available to you, even on an ad-hoc or emergency basis, then any hours are likely to constitute working time under the provisions of the National Minimum Wage Act
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