My role as a carer requires me to be present at work, but allows me to sleep if I have nothing to do. Am I entitled to be paid the National Minimum Wage for these hours?

Recent case law has established that workers are entitled to be paid National Minimum Wage (NMW) for all hours worked even when their role allows them to “sleep-in”.

Who is entitled to bring a claim?

If you are a worker aged 16 and above within the United Kingdom, and you have been paid less than the National Minimum Wage (NMW) on average for the hours you have worked (which includes the hours during a sleep-in period), you may be entitled to receive payment in arrear of these wages.

I have only been employed for a short while. Will this prevent me from bringing a claim?

No. The period of time you have been employed will not affect your ability to bring a claim for NMW, as your rights start from day one of your employment.

I was very rarely required to carry out any work during sleep-in shifts. Does this prevent me from bringing a claim?

There are a number of issues that need to be considered including the level and degree of responsibility you held whilst carrying out this shift. There is no one determinative factor, and therefore even if you were only rarely required to wake up and intervene, you may still be entitled to bring a claim for unpaid wages.

I opted out of the Working Time Regulations. Will this prevent me from bringing a claim?

If you have signed an opt-out agreement, you still have a right to be paid the NMW for the hours you have worked.

Do I have a claim?

Each case is judged on its own merits. Your entitlement to bring a claim will depend on a number of factors including where you carried out this work, what degree of responsibility you had during these sleep-in shifts, and how frequently you were paid. Contact our specialist employment lawyers here today to discuss this further.

How far can I claim back?

You may be entitled to bring an unlawful deduction of wages claim in the Employment Tribunal with a backdate limited to 2 years for an unbroken series of deductions from your wage.

You can also bring a claim in the ‘normal’ courts because you also have a contractual right to be paid the NMW. You can bring this within 6 years of any breach.

How can I bring a claim for these unpaid wages?

You can bring a claim in the Employment Tribunal provided you are within the tight time limits (in the Tribunal, 3 months from the last deduction, which may be extended by ACAS conciliation, but 6 years in the normal courts). Contact us here today to speak to one of our experienced employment solicitors who will be able to assess your claim and its value and advise as to next steps for a fixed fee of £300.

Will there be a financial penalty for my employer in addition to repayment of my wages?

HMRC have waived financial penalties on underpayment of workers wages resulting from “sleep-in” shifts that took place before 26 July 2017 for the social care sector. However, any underpayments for “sleep-in” shifts after 26 July 2017 will continue to be liable to financial penalties in the usual way – i.e 200% of the arrears found, and for employers who do not work in the social care sector. Further information can be found here.

Can my employer be held criminally responsible for unpaid wages?

Criminal investigations and sanctions may be appropriate for an employer who is persistently non-compliant and who refuse to cooperate with compliance officers. The decision to bring charges will be up to the HMRC.

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Updates: For employers: Holiday and working time | Pay and pensions |
Tagged with: Pay | Working time |

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