Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
The response has been published and the Government considers that the draft Consolidated Regulations correctly reflect the Government’s intended policy and recent case law relating to sleep-in time and will not therefore be rewriting the Regulations to bring further clarity on this point. The Government has revised the draft Regulations to deal with typographical errors in the drafts published in summer 2014 but has not made any substantive changes. They have indicated that they will provide updated guidance “during the course of 2015”. Therefore the current legal position on sleep in shifts remains:
- Every hour of a sleep-in shift will be treated as working time for minimum wage purposes if it is treated as time work and/or salaried hours; and
- It might be possible to argue that an employee working a sleep-in shift is working unmeasured work. In these circumstances if a daily average agreement is in place it might be possible to argue that only those hours covered by the daily average agreement count for minimum wage purposes.
It is apparent that only 3 of the 22 responses to the consultation referred to the case law on unmeasured work. We drafted each of those responses on behalf of the 3 organisations concerned. It is our hope that the Government will update their guidance to endorse the approach to sleep-ins as unmeasured work but there is certainly no guarantee that this will happen. In our view the focus on providing updated guidance rather than clarifying the legislation is unhelpful because the Courts are free to ignore Government guidance and indeed the current guidance is inconsistent with case law.
In short, providers who have been awaiting the outcome of the consultation before deciding on how to proceed will now need to consider whether to wait for updated guidance before changing any of their existing arrangements. Our view is that if providers cannot ensure that all employees receive the minimum wage when taking into account every hour of their sleep in shifts, they seek to position the arrangements as unmeasured work and to ensure that daily average agreements are in place.
Other issues covered off in the consultation
The Government has also indicated that it will provide updated guidance in relation to travel time and concerns in relation to enhancements within the revised guidance. The wording of the revised Regulations that deals with enhancements is also a concern in that it appears it could impact on the ability to argue that a sleep-in shift is unmeasured work or that the payment for the shift counts towards the minimum wage.
The Government has indicated that any changes to the legal framework relating to the national minimum wage would be considered for inclusion during a possible future review which would require a further public consultation. There is no timescale given for that future review and therefore this appears to be something that is being placed in the long grass. We consider that providers and umbrella groups will want to lobby on this issue as a matter of urgency and we consider that involving the Local Government Association in any lobbying efforts would be a sensible course.
For more information
We will provide a further update once any guidance is published. In the meantime, if you have any queries please contact Matthew Wort on:
0121 214 3501 | firstname.lastname@example.org
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