Live-in wardens aren’t entitled to the national minimum wage while asleep, says Jack Harrington
Sheltered housing providers will be relieved that the Employment Appeal Tribunal has ruled that wardens are not entitled to be paid for time spent sleeping while they are on call.
An employment tribunal had earlier ruled that salaried wardens were entitled to the national minimum wage while they were asleep but connected to an alarm system in residents’ accommodation.
However, the EAT distinguished between cases where a salaried worker is required as part of their core duties to work during the night, such as a nightwatchman, and those where a worker is required to be on call.
Where a salaried worker is carrying out their core duties at night, the whole period will count as working time for national minimum wage purposes. However, where the night-time work is not the essential nature of the worker’s job, an exemption in the regulations applies so that only time spent awake and working counts as time for minimum wage purposes.
In the recent case of Edinburgh Council v Lauder and others, the EAT found that the wardens fell into this latter category. The time they spent sleeping but on call fell outside their essential duties and they were not entitled to national minimum wage for those hours. This case supercedes previous EAT decisions that suggested that salaried workers resident at their place of work were entitled to national minimum wage while asleep.
If the terms of the contract distinguish clearly between the core working hours and the time spent on call for emergencies, the worker is most probably exempt and need not receive national minimum wage while asleep.
Jack Harrington is an employment law solicitor and partner at Pannone