When is Sleeping Working ?

So the so called “sleep over case” is in the news.

First up let me declare a conflict I am effectively the employers representative for an organisation that employees people to do sleep-overs. Nothing I say here represents the views of my employer and are my own personal opinions which may or may not be reflected in my working role.

So to answer the question it is when you are sleeping on your employers premises and have your freedoms curtailed to a sufficient extent. To be more specific the courts talked about your inability to leave, your inability to say have friends over (in other words certain activities are banned) and be available to work at any time.

If we reframe this to say a shop assistant waiting for a customer we still recognise them as “working” while waiting and it is principally because the same tests apply, they can’t leave, can’t do certain things and have to work at any time when a customer arrives. The only difference they have to have their eyes open versus shut.

So I am convinced you are working when doing a sleep-over, in fact in reality despite the legal arguments all the employers were convinced which is why they paid people to do this task. What is mostly at question is the value of the work.

Having decided that the activity is work you then have to abide by our old friend the Minimum Wage Act and this is really what the decision is about, the payment of the minimum wage and not really an argument about work or not work.

Problem is we run into my gardening argument, The government and by extension the employers that it funds do not value this work at the minimum wage level (or they would already be paying it presumably). They value it at a lower level, (as best evidenced by the government threatening legislation to make this issue go away and making specific reference to not paying the amount asked for) now this lower level varies across those employers and as an aside I suspect that if IHC had valued it a bit higher it never would have gotten to this point.

I also find it interesting that despite the Union and Employees agreeing to various payments over time all this is going to be overturned which is effectively the government (via legislation) saying you are not competent to make a bargain between yourselves as we know better. Admittedly in the case of IHC the Union have apparently been discussing this for some time so they may dispute that they agreed, however they did sign up for what they have now one way or another.
But in the case of my employer this has never been an issue but we are now suffering the same outcome.

I am also interested that this is potentially not in the best interests of the employees as there are a number of definite and potential consequences stemming from this but without going into my theories on what might happen next they all amount to one thing. The amount of work available is going to reduce as the cost has now increased. Now in the best case we will find equilibrium from the status quo where the total amount paid will be the same, however there is a real risk that there will actually be a reduction in the overall amount.

Another quick reaction from some of the providers is that they are going to erode the quality of the service they provide (by grouping people into higher numbers) something that has been rightly deplored by the Disability Sector, however it is one of the predictable responses to a need to reduce costs.

So given that the total amount paid to workers will likely stay the same or reduce how did this help anyone other than high priced legal counsel, not the workers and not the vulnerable members of society that they are doing a fantastic job caring for. Oh I remember it is all part of the process.