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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47354
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi I am working at this care house and they are asking me to

Resolved Question:

Hi I am working at this care house and they are asking me to work nights without paying me ,they are saying that it is considered social work so that is why they wont pay me ,I only been at this company for 2 months ,so I said I would leave and they said I still need to give two weeks notice and will have to work the night that has been scheduled for me next week are they right in not paying for the night work? They also suggested that all I will do is sleep so one more reason for not paying me the hours but I will be responsible for 9 people in the house and if something happens I need to do any action necessary
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. did you have a contract of employment or was sleeping nights mentioned to you at interview

Customer:

sleeping nights were mentioned but never told that would be unpaid but I did said I would be free to work any hours but never for free

Ben Jones :

Ok thank you leave it with me I need to look up a few things and then get my advice ready.I will post back on here when done there is no need to wait and you will receive an email when I have responded.

Customer:

on the contract says the hours of work are on a rota basis and if over 21 will include awake night duties and my contracted hours will be 36 hours as agreed at your interview ,thanks will await for your reply

Ben Jones :

ok thank you for that.

Ben Jones :

Hello, sorry I did reply yesterday but the site has been having some issues and not all responses have registered correctly – I only found out today so will post my response again for you – hopefully this time round it reaches you ok…


 


Basically your position is such that you are entitled to be paid for anything that amounts to ‘working time’. According to the Working Time Regulations 1998, ‘working time’ includes ‘any period during which a person is working, at his employer’s disposal and carrying out its activity or duties’.

When it comes to sleeping in or on call duties, where you are either at home or at work and spend some of your time on call, on standby or even sleeping, then whether this time amounts to working time would depend on the actual circumstances.


 


There have actually been at least a couple of major cases taken through the European Courts of Justice in relation to this matter and these are better known as the SiMAP and Jaeger cases. In those cases, the ECJ held that all "on-call" time amounts to working time if the employee is required to be in the workplace rather than at home, even if the worker is asleep (at the workplace) for some or all of that time. The fact that the workers were required to be in the workplace and ready for work indicated that they were to be regarded as carrying out their duties. As such if your circumstances match these, you have a good argument that the time spent at the premises looking after patients and whilst under the instructions of your employer is working time, even if you were asleep for most of it.


 


Hope this clarifies your position?

Customer:

Yes it does thanks for your help

Ben Jones :

You are most welcome, all the best

Ben Jones and other Employment Law Specialists are ready to help you

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