Sleep-ins: the flat rate is dead, and that is good news

Ask three agencies how they price a sleep-in and you will usually get the same answer: one flat figure per night, whoever the worker is and whatever the night brings. It is simple, and it is wrong in both directions at once.

A registered nurse sleeping in is not doing the same job as a care assistant sleeping in. And a night where the worker is up three times with a distressed resident is not the same night as one slept through. A flat rate pretends both of those differences away, which means somebody is being shortchanged every single night: the worker, the provider, or the person receiving care.

The legal shape of a night

Since the Supreme Court decided Royal Mencap v Tomlinson-Blake, the law has been clear: time a worker is permitted to sleep does not count for minimum wage purposes, but time awake and working does, and every one of those minutes must be paid at least at the National Living Wage. The pricing model should follow that shape rather than fight it.

So we price sleep-ins in two parts: a fixed allowance for the night, set per role, plus an hourly rate for any time the worker is woken and working, rounded up to the next quarter hour. Sleep through and only the allowance applies. Up half the night and the pay reflects it. The worker is paid for what actually happened, and the provider pays for what they actually received.

What to ask your agency

If you commission care, ask your staffing agency two questions. How is a woken hour paid, and does the answer change by role? If either answer is a blank look, the person answering has not read the case that governs their own pricing, and it is worth wondering what else has not been read.

This article is general commentary from our own experience running a healthcare staffing agency. It is not legal advice. Take specific questions to ACAS or an employment law adviser.