The Employment Appeal Tribunal (EAT) has considered whether employees carrying out sleep-in’s at work, but who are on standby for the duration of the shift, engage in “time work”? (‘time work’ is defined within the National Minimum Wage Regulations 2015 at regulation 30).
If it is ‘time work’, should workers be entitled to be paid the national minimum wage for the duration of their shift? or, should they only be entitled to the national minimum wage when they are awake and carrying out duties?
The three cases of, ‘Focus Care Agency Ltd -v- Roberts’, ‘Frudd and another –v- The Partington Group Ltd’ and ‘Royal Mencap Society -v- Tomlinson-Blake’, have been heard at the EAT, on the issue of care workers’ sleep-in shifts and the National Minimum Wage, with the overall conclusion being that the answer is, it depends.
The decision was reached when three joined appeals were considered, the EAT held that a multifactorial assessment is required when deciding whether a worker is available, and is required to be available at, or near their place of work, for the purposes of working (under regulation 32 of the National Minimum Wage Regulations 2015), or whether they are working by just being present at the workplace (even if they are asleep).
In its judgment the EAT set out four potentially relevant factors for determining whether a person is working by being present:
(i) The employer’s particular purpose in engaging the worker may be relevant to the extent that it informs what the worker might be expected or required to do: for example, if the employer is subject to a regulatory or contractual requirement to have someone present during the particular period the worker is engaged to be present, that might indicate whether and the extent to which the worker is working by simply being present.
(ii) The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer may be relevant. This may include considering the extent to which the worker is required to remain on the premises throughout the shift on pain of discipline if he or she slips away to do something else.
(iii) The degree of responsibility undertaken by the worker may be relevant. (The EAT considered the comparison of the limited degree of responsibility in sleeping in at premises to call out the emergency services for example if a fire broke out, with a night sleeper in a home for the disabled, where a heavier personal responsibility is placed on the worker in relation to duties that might have to be performed during the night).
(iv) The immediacy of the requirement to provide services if something untoward occurs or an emergency arises may also be relevant. In this regard, it may be relevant to determine whether the worker is the person who decides whether to intervene, and then intervenes when necessary, or whether the worker is woken as and when needed by another worker with immediate responsibility for intervening.
The above four principles should be applied when considering a sleep -in situation. It should be noted that each of the cases in the judgment were different in terms of their particular facts, in one for example, a care worker supporting vulnerable adults worked a sleep-in shift during which no specific tasks were allocated, but there was a continuing obligation to remain at her post and be vigilant in case she was needed to deal with any incidents. The EAT upheld the Employment Tribunal’s finding that the carer was performing time work throughout her shift, as she was required to be present and would have been disciplined if she left her post.
The Royal Mencap Society, a party to one of the appeal cases has indicated that they intend to appeal this decision. We shall provide any further reports on this once they are available.
The position for Employers
Overall the judgment in these three cases does not give a ‘clear-cut’ answer for Employers. The law regarding sleep-in’s can be complicated, and the critical question to determine whether the national minimum wage is payable for time spent on a sleep-in at work is whether the job requires the worker to be physically present, at a specific location which is not their home.
We would recommend that businesses ensure that they review their existing contracts of employment, to ensure that all workers are being paid the correct levels of pay. The guidelines above should also be considered and businesses should follow this guidance in order to reduce any potential risks. Further, businesses, where relevant should consider if the Local Authority will pay more, whilst this may not be easy to negotiate, the Local Authorities must comply with the Care Act statutory guidance on this.
We would advise that all situations involving employees who undertake sleep-ins will need to be dealt with on a case by case basis. Breaches of the national minimum wage legislation can lead to severe penalties and reputational damage for a business, and we would always recommend that legal advice is sought if this is something that effects your business.
If you would like to discuss this area further please contact our employment law team on 0161 478 3800 or [email protected]
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.