Overnight pay row looms for landlords

Trade union Unite has urged its members to report cases to its officers and said it will support them in challenging employers or taking legal action. Unite officers found examples of workers in residential projects, such as mental health schemes, being asked to sleep over in their workplace in case they needed to deal with an incident during the night.

In one case, staff were paid £20 a night for sleeping over and given time off in lieu if they had to get up to help residents. Unite said the practice was illegal as staff who were available for work overnight should be paid the minimum wage of £5.80 per hour under the European Working Time Regulations 1998 for every hour they were available for work - even if they were asleep. Overnight hours should also be counted when calculating holiday entitlements, the union said. Staff should also get 11 hours of consecutive rest in every 24 hours.

Rachael Maskell, national officer for the not-for-profit sector at Unite, said: ‘Our officers are now going out to the members to find out what practices are going on in their residential area of work. We will be challenging employers on the back of that and if members want to take cases [to a tribunal] then we are there to support them.’

Ms Maskell added that the union would prefer to see employers make back payments to staff but it would help members take legal action for unlawful deductions of wages if necessary. Residential schemes, such as old people’s homes, hostels for homeless people, domestic violence refuges and drug treatment projects, would also be affected by working time and minimum wage rules for staff on call.

In a briefing paper for members, Unite said even those staff who had signed opt-outs from the Working Time Regulations still had to be paid minimum wage for every hour worked.

Richie Alder, partner in the employment department of law firm Trowers & Hamlins, said employers had to ensure they paid at least the minimum hourly wage to staff during night shifts, including when they were asleep, if they were paid daily or by the shift.

However, salaried staff only had to receive the minimum wage on top of their salary for time during sleep over shifts when they were working but not for time when they were asleep. Mr Alder added that the working time rules say staff must get 11 hours’ rest every 24 hours unless they sign a collective opt-out. He said: ‘Time asleep does count as working time unless the chances of being woken up to do something is negligible.’

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