Normally, sleeping on the job would be at the very least frowned upon, maybe even grounds for dismissal, but in a test case in the care sector the Employment Appeal Tribunal (EAT) has given guidance on receiving the National Minimum Wage (NMW), even whilst sleeping.
The EAT was dealing with three appeals from Employment Tribunals which concerned three employees, including two care workers. In the case of the care workers, they were required to be at the client’s home at night, so that they could respond to emergencies and perform night duties. The question that arose was whether or not they should be entitled to the NMW for the whole of their shift, or just the hours during which they were awake.
Failure to pay NMW can lead to criminal penalties against employers, so the matter is very important, especially in the case sector where care workers are often required to work overnight as part of their normal duties.
The question at the heart of the appeal was whether employees who sleep-in, in order to carry out duties if required, for which the employer paid a flat rate, engage in ‘time work’ (under Regulation 30 of the NMW Regulations) for the whole duration of the sleep-in shift, or whether they are working only when they are awake to carry out any relevant duties.
If a worker is at their own home, and just needs to be ‘available’, perhaps to respond to emergencies, then only the hours when they actually carry out work are relevant to the calculation of their wage against NMW, not the full duration of their on-call time. But if a worker is actually ‘working’ throughout the on-call time at home, then all the hours in their shift are relevant.
For those workers on-call away from home, all the hours when the worker is ‘available, and required to be available, at or near a place of work for the purposes of working’, is relevant to the calculation of their wage against NMW, if they are awake for the purposes of working.
However, if the worker is asleep for part of their shift, even if they sleep at or near the workplace and the employer provides sleeping facilities and just needs to be ‘available’ then those sleeping hours do not need to be included in the calculation for the purposes of NMW. Similarly, the hours when they are awake, but for a purpose other than work, those hours need not be included.
However, if an on-call or sleep-in worker is in fact ‘working’ rather than just ‘available’, then all the hours need to be included for the purposes of calculating their pay against NMW for their entire shift, no matter whether they are awake or asleep.
Clearly, the crucial question is whether the worker is ‘working’ or just ‘available’. The EAT stated that there is no single factor that will decide this; instead, each case will turn on its own facts.
In the test case, the worker provided support to men with autism and learning difficulties, who needed 24-hour care in their own homes. During a sleep-in shift, the care worker would sleep in her own bedroom in the client’s home, and had no specific tasks allocated, but had to:
- – Remain at the house
- – Keep a ‘listening ear’ during the night in case support was needed
- – Intervene where necessary to deal with incidents (for example, if the individual was unwell or distressed) or respond to requests for help
- – Respond and deal with emergencies.
In practice, the care worker intervened only six times over 16 months. However, the Employment Appeal Tribunal found that she was ‘working’ throughout the sleep-in shift, so was entitled to the NMW throughout. It came to this conclusion based on the following:
- – The employer was obliged to have someone on the premises, per both legislation and the contract with the local authority
- – The care worker had to remain present throughout her shift; keep a listening ear and exercise professional judgment as to whether or not to intervene, and do so straight away if necessary.
The EAT stated that whether someone is ‘working’ will not depend on there being a particular level of activity. An employee with little or nothing to do during certain periods does not mean they are not ‘working’. The Employment Appeal Tribunal set out some potentially relevant factors:
- – The terms of the employment contract; but simply using the term ‘on call’ will not mean a worker is not ‘working’ throughout – tribunals will look at the reality.
- – Why do you have this worker? For example, do you need to have a worker on site to comply with regulatory requirements, or a contract?
- – How much is the worker restricted by the requirement to be present and at your disposal? Do they need to stay on site throughout the shift? Would they be disciplined if they left to do something else?
- – How much responsibility does the worker have?
- – How quickly does the worker need to respond and deal with any issues? Is the worker the person who makes the decision to intervene, and intervenes when necessary; or are they woken by another worker with immediate responsibility for intervening?
It is still possible that an ‘unmeasured work’ argument could be pursued, where workers are paid a flat rate where workers would only be paid based on an agreed average hours of work that are likely to be spent not asleep and performing duties. Only these agreed hours would count towards the calculation of the NMW. It’s important to note, however, that this argument remains untested, and might not hold up to scrutiny.
So, it’s clear that this issue is still incredibly complex, and open for debate. Although the EAT have issued some guidance on the topic, it’s still largely unclear whether or not certain workers are entitled to the NMW in the hours they sleep. One case involving the wardens of a caravan park, for instance, was allowed and was remitted to a fresh Employment Tribunal for reconsideration.
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