MORE than 150 members of staff at Cheshire East Council may have been paid less than half the minimum wage for ‘sleep-in’ shifts in just one month last year.

A report seen by the Guardian claims that dozens of social care workers have been paid as little as £34.34 for overnight shifts of up to 10 hours – the equivalent of less than £3.44 an hour.

It highlights that in September 2016, 851 sleep-in shifts were taken by 155 CEC employees – including an average of seven sleep-in duties each night for staff in the Care4CE team.

While on sleep-in shifts, care workers are not required to stay awake for the entire shift, but are woken to deal with incidents.

The flat rate payment is made to staff for up to 30 minutes of ‘working time’ per night – those who work more than that are paid for the actual hours worked, to the nearest 15 minutes.

The issue was brought to CEC’s attention by senior HR officer Sue Wallace, who issued the report to Mike Suarez, the recently-suspended chief executive, in October last year.

The report said: “This was looked at a couple of years ago in relation to Care4CE, and if the payment method was unlawful.

“The decision then was ‘to do nothing’, rather to wait and see how case law moved and if formally raised by staff or unions.

“Questions around the level of ‘sleep-in’ payments and if it shouldn’t be higher have been made by staff, although no formal case has been raised.”

It went on to highlight court cases which had ruled that workers of sleep-in shifts had been entitled to the national minimum wage – which stood at £7.20 an hour for workers aged 25 and over at the time of the report.

CEC was then given the choice of paying the equivalent of the minimum wage in a flat rate, paying new sleep-in allowance based on the minimum wage, paying an allowance based on the living wage which CEC adopted in November 2015, or to ‘do nothing’ and ‘wait until we receive a formal challenge’.

“Recent court judgements suggest that the current practice with regard to making a flat rate sleep-in payment may now be illegal,” the report said.

“The legal position is that, even though staff do not have to be awake during a ‘sleep-in’, they are required to be at ‘work’.

“Furthermore, by being required to be at work, if they are paid a flat rate, the rate should work out at equivalent to or above the minimum wage.”

After CEC decided to continue paying the same sleep-in allowance, Ms Wallace submitted her report under the council’s whistleblowing process.

She was dismissed by the council on December 21 – just days after discussing her concerns with a senior officer.

The Guardian understands CEC informed Ms Wallace her fixed term contract was due to end, but she was not given an opportunity to appeal.

A preliminary hearing for her employment tribunal will take place next month.

A spokesman for CEC said: “An internal report was considered by the head of human resources in November 2016 and a review of the issues raised was commissioned through an independent pay consultant.

“This is still ongoing – however, preliminary findings indicate that CEC is not in breach of minimum wage legislation.

“CEC takes both the welfare of staff and its legal obligations very seriously. However, it would be inappropriate to comment further until the review is complete. It would also be inappropriate to make comment in relation to issues pertaining to individual staffing matters.”