National Minimum Wage – Sleeping on the job?
Can a worker still be working even when he or she is asleep? It seems like a silly question, but it lies at the heart of an important set of cases recently heard by the Employment Appeal Tribunal.
All three involved workers were required to stay on their working premises overnight, but were given a place to sleep for any period when they were not needed. The issue was whether the time that they spent sleeping had to count as working time for the purposes of determining whether they were being paid the National Minimum Wage.
The National Minimum Wage Regulations 2015 generally provide that time spent ‘on-call’ at the employer’s premises counts as working time, but provides an exception to that rule for time when the employee is sleeping (providing the employer provides suitable facilities allowing them to do so). The issue in these cases was whether the employees were ‘on-call’ overnight or whether the whole of their time should be treated as working.
The EAT stressed that there was no easy or simple test to determine the difference between being ‘on call’ at a place of work and actually working. Certainly the fact that an individual had little or nothing to do during a certain period did not mean that he or she was not working. A range of factors had to be taken into account including the employer’s purpose in hiring the employee. In cases where the employer was obliged to have someone on the premises overnight to meet some regulatory requirement then that might indicate that the worker’s ‘mere presence’ amounted to work. The extent of the worker’s freedom to leave the premises during the period in question was also relevant – as was the degree of responsibility that the worker was given and the type of task that he or she could be called upon to perform.
In the case of Royal Mencap Society v Tomlinson-Blake the EAT held that the Tribunal was entitled to find that a care worker was working when she performed a ‘sleep-over’ shift even though she was in practice rarely woken and required to perform particular tasks. The employers needed her to be present and on the premises throughout the night and exercise her professional judgment as to what needed to be done. She was performing her role as a carer throughout the night – even when she was asleep.
The context was very different in the case of Frudd v The Partington Group Ltd. Here a married couple were jointly employed to work on a caravan park as warden and receptionist. The Tribunal found that they were genuinely ‘on call’ overnight rather than just working, but the EAT found that this decision was not properly explained. The fact that the employer described them as being on-call was not enough and the case was sent back to a fresh tribunal to be heard again.
The final case, Focus Care Agency Ltd v Roberts concerned care workers providing a supported living service. Typically two members of staff would be provided to look after a service user during the day and two more overnight. The overnight shift was divided between a ‘waking night worker’ who was required to stay up all night and a ‘sleep-in night worker’ who was there to assist with emergencies but was otherwise allowed to sleep through the night. The EAT held that the Tribunal was entitled to find that the sleep-in hours were served as part of the contract. That contract set out a standard hourly rate – it did not specify a separate allowance for sleep-in shifts. Focus had in fact paid a £25 sleep-in allowance, but the Tribunal rightly held that Mr Roberts had not waived his contractual right to be paid in full for each hour of his shift – even if he was permitted to sleep. The employer’s appeal was dismissed.