As you are aware from a recent NIPSA HSC Central Panel bulletin the residential ‘sleep-in’ Industrial Tribunal claim taken jointly by NIPSA and Unison was unfortunately unsuccessful.
The industrial tribunal claim was taken forward on 2 core grounds:
- Unauthorised deduction from wages in relation to the ‘sleep-in period (11pm to 7am) of the ‘sleep-in shifts’
- Failure to be provided with ‘compensatory rest’ pursuant to the Working Time Regulations (Northern Ireland) 1998
Pay during ‘sleep-in’ shifts
NIPSA is disappointed with the judgement regarding the arrears for unlawful deduction from wages but believes that the judgement has provided clarity regarding the legal entitlements of payments to members for ‘sleep-in’ shifts but only if a member lodge claims for payments for all work undertaken and for ‘wakefulness’.
The judgement provides important clarity around what Trusts should be paying to staff in relation to ‘sleep-in’ shifts which is as follows (Annex B):
- The ‘sleeping-in allowance (at the relevant rate);
- Payment in addition at the hourly rate (normally time and a half) for all work undertaken during the ‘sleep-in period’ of the ‘sleep-in shift’;
- A payment for ‘wakefulness’ at the national minimum wage rate, pertaining at the relevant time.
The judgement was clear that only payments can be made based on what the staff member has claimed for on their monthly timesheet i.e. if the staff member does not claim for period(s) of disturbance/call outs during the ‘sleep-in’ shift they cannot be paid for this time, if the staff member does not claim for period(s) of wakefulness i.e. “from the end of the incident/disruption to the period of when sleep was regained” for example incident ends at 1.00am and sleep was regained at 3.00am, equals 2 hours of wakefulness, then the staff member cannot be paid for this time. For the avoidance of doubt, it is your responsibility to ensure that time sheets etc are completed correctly to ensure that you are claiming for your full entitlement.
If there are no current systems in place to allow members to claim for all of the payment they are legally entitled NIPSA would advise you to keep personal records of all hours of work undertaken and periods of wakefulness during every ‘sleep-in’ shift that you undertake.
NIPSA Next Steps
It was highlighted during the tribunal hearing that ‘wakefulness’ was not well understood by the Claimant or managers within the Trust and there was no evidence that any employee claimed for wakefulness during ‘sleep-in’ shifts.
NIPSA will be engaging with Trusts to address what systems are in place to allow members to claim for the above payments. If no systems are in place NIPSA will request draft forms from the various employers to be provided to allow its members to claim for payments that they are legally entitled to. If this is not responded to NIPSA intends to prepare draft forms for members to complete to lodge with their employer and in the absence of payment of these monies further Industrial Tribunal proceedings for unlawful deduction from wages may require to be lodged.
Please be assured NIPSA will continue to fight to ensure that this process is as easy as possible but we need your help to ensure you get paid what