Sleeping workers and the National Minimum Wage

By Nathan Combes, senior associate at Lupton Fawcett

One question that employment lawyers are commonly asked is “do we have to pay our workers that National Minimum Wage (NMW) when they’re sleeping at work?” It would be nice to provide a quick, succinct and definitive answer. However for reasons that will become apparent our initial response is usually “it depends”.

A recent Employment Appeal Tribunal (EAT) decision has confirmed that the question of whether or not workers who are sleeping need to be paid the minimum wage depends on the specific facts of each individual case.

This outcome is likely to be disappointing for the region’s employers who (mindful of the potential for criminal sanctions to apply in circumstances where they get things wrong) will have been hoping for a more straightforward decision. For obvious reasons this decision is of particular importance for businesses that operate in the residential care sector.

The crux of the issue concerns whether workers who sleep in, in order to carry out duties (on an as and when required basis) are engaging in what is known as “time work” for the duration of their shift. If they are, then the NMW will be payable in respect of the entire shift. If not then the worker in question will only be entitled to be paid the NMW for the time that they are awake and working.

In the case of Focus Care Agency v Roberts, the EAT has emphasised the importance of applying a ‘multifactorial test’ in order to establish whether the mere presence of the worker constitutes working even if they remain sleeping for the duration of their shift. Helpfully, the EAT set out several relevant factors including whether there is a regulatory requirement for the employer to have someone present at all times, whether the worker’s activities are restricted by a requirement to be present and at the disposal of the employer and the level of responsibility attaching to the individual worker and the types of activity that they might be required to carry out whilst awake.

The EAT also indicated that a requirement to be present in order to deal with critical issues and/or emergencies might also be a relevant factor.

The Focus Care Agency case concerned a care worker who was tasked with working sleep in shifts in a residential unit that was home to several vulnerable adults. The worker was not allocated any specific tasks during her sleep in shift and was entitled to sleep for the entire shift if there were no issues or circumstances that required her involvement. However, the care worker was required to remain in situ so that she could be easily awoken if one or more of the vulnerable adults required her help or assistance and could have faced disciplinary sanctions if she’d left her post.

The EAT reasoned on these facts that the care worker could genuinely be considered to be performing time work for the whole of her shift. Essentially the EAT found that the care worker’s presence enabled her employer to comply with its statutory requirements to provide a defined level of care and the fact that the care worker was often not awake for large chunks of the time did not mean that she wasn’t present and working.

This concept of ‘sleep working’ may be a difficult one for employers and businesses to come to terms with but clearly it is going to be important for them going forward to do so if they are to ensure that they avoid costly NMW penalties and ensure that they are fully compliant with the law.

Interestingly, at the same time as hearing the Focus case, the EAT also considered a separate appeal concerning a husband and wife team who were employed as on-site wardens at a caravan park. The couple were required to work an on-call shift from time to time which required them to be on-call overnight. The couple were paid a flat rate per call out but did not receive payment for the whole of the on-call shift.

An earlier employment tribunal had determined that because the couple were at home (in accommodation provided by the employer) during periods when they were not required to respond to any calls that they could only be considered to be carrying out time work while actually working, because they were at home during periods when they were not carrying out duties. The EAT decided to overturn that decision and remit the case to be reheard by a new tribunal.

The EAT was critical of the fact that the original tribunal had failed to apply a multifactorial ‘fact sensitive’ approach and stated that it had been too easily influenced by previous cases.

It is clear that this is a developing area of the law. Employers would be well advised to review their existing sleep shift and on-call arrangements in light of recent case law developments.

For further help or advice, please contact Nathan Combes on 01904 561449 or Nathan.combes@luptonfawcett.law