The NMW is the specified minimum hourly rate of pay to which most workers are entitled. All employers are obliged to pay the NMW, irrespective of their size.

First and foremost, timing is the first factor that should be taken into account as NMW claims can be brought as unlawful deductions from wages and/or breach of contract.

Employees can only claim unlawful deduction from wages for a period of three months from the date of the last unlawful deduction. In contrast, breach of contract claims can be brought for six years after each incidence of underpayment (Article 4 of the Limitation (Northern Ireland) Order 1989), significantly widening the possibility for such claims being brought.

In Focus Care Agency Ltd v Roberts UKEAT/0143/16 the tribunal held that a multi-factorial approach should be adopted and each case must be assessed based on its own specific facts. This makes it tricky to set out clear guidelines for employers, but the below considerations by the EAT in Focus Care should offer some assistance:

• The first step is to consider the employer’s particular purpose for requiring the employee to be on the premises. For example, if there is a statutory requirement that the employee should be present “just in case”, that is a strong indicator that the employee is being paid simply to be there and is working regardless of whether any duties are actually discharged.
• Secondly, consider the extent to which the employee’s activities are restricted by the requirement to be present and at the employer’s disposal.
• Thirdly, what degree of responsibility does the worker have? In Wray v JW Lees and Co (Brewers) Ltd [2012] ICR 43 the EAT distinguished between sleeping at the premises to call out emergency services, and being a night sleeper in a home for the disabled where there is a significantly heavier personal responsibility on the worker.
• Finally, is the employee assisting another employee or is it up to him to provide the required services e.g. in the event of an emergency.

Employers should always consider carefully why a worker is required to sleep over and ensure that employment contracts are kept up-to-date to reflect any changes to an employee’s/worker’s working pattern.

We recommend that you obtain legal advice in relation to your specific circumstances if you are concerned about potential NMW claims.