The question of whether employees whose role sees carry out sleep-in, on-call shifts at a place of work, are entitled to the National Minimum Wage (NMW) has been rumbling on for some time.
A recent case heard at an Employment Appeal Tribunal (EAT) considered whether such employees were entitled to the NMW for the full duration of the night, or only when they are awake and carrying out relevant duties.
The EAT decision provided more guidance on whether someone is 'working' but there is still no clear cut test and this is still an uncertain area of law which is an ongoing concern for many employers, particularly in the care and housing sectors.
Background and facts
There had been previous cases, including the EAT decision in Shannon v. Rampersad, where it was held that on call night care assistants were not entitled to the National Minimum Wage for those hours spent sleeping while on shift. Despite this case, employers were still not confident whether sleep-in on-call workers are entitled to NMW for all hours spent on-call, or just those spent responding to calls. It was this point that three joined appeals in the case known as Focus Care Agency hoped to clarify.
The first case, Royal Mencap Society v Tomlinson-Blake, involved a care support worker who was required to provide support to patients with learning difficulties who needed 24-hour care in their own homes. She was the only member of staff in the house and had to be vigilant of patient needs, meaning that she did not get a long time to sleep. She received a flat rate payment of £22.35 plus one hour’s pay (£6.70) for a nine-hour sleep-in shift. The Employment Tribunal had held that there should be an entitlement to NMW for the whole period.
In Frudd and Anor v The Partington Group Ltd, the second case, the claimants lived on site at a caravan park. They were paid for their regular hours, but had to be available to emergency call outs and were paid £7.50 per person per call out. The Employment Tribunal had held that there was only an obligation to pay the claimants when they were actually working, and there was no breach of the NMW.
The last case, and the lead case for the joint appeal, was Focus Care Agency Ltd v Roberts. The claimant was paid a flat rate £25 for working a sleep-in shift, but he had to do work if called upon. The Employment Tribunal held that this sleep in-shift should attract NMW.
The essence off all of the above cases was that the claimants argued they had been underpaid the NMW as they had not been paid for the hours they had been sleeping.
- The EAT held that a multi-factorial evaluation was required in order to determine the correct treatment of sleep-in shifts under the NMW Regulations 2015. The EAT listed a number of factors that might be relevant to that evaluation. These include:
- the purpose for engaging the worker;
- the extent to which the workers activities are restricted by the requirement of him to be at the disposal of the employer;
- the degree of responsibility the worker undertakes;
- how quickly the worker needs to respond and deal with any issues when they're called upon;
- 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?
In the Royal Mencap Society, the EAT decided that the ET had correctly applied the multi factor approach and that the claimant had been working simply by being present in the house during her shift whether she was awake on not. She was constantly required to use her professional judgment, and was required to be at a place or work and available to work, even when there were no specific tasks to undertake.
In Frudd and anor the case was remitted back to the Employment Tribunal for a fresh hearing as it had not been clear in the ET's original judgement if they had applied the multi factorial approach when making the decision.
Lastly, in Focus Care Agency, the EAT agreed that the claimant was engaged in ‘Time Work’ whilst asleep and the Employment Tribunal was correct in its decision, but emphasised that each case will turn on its own facts.
Impact of judgment
Although the EAT gives guidance on whether someone is 'working', there is still no clear cut test. Whilst the factors are helpful in terms of providing guidance, this decision does no more than that. It is still an uncertain area of law, and there is no one question (or series of questions) that provides a definitive, unchallengeable answer.
Where employees do undertake sleep-ins, employers should calculate their remuneration on a case-by-case basis as each situation is different and is particularly fact sensitive.
As stated at the start of this article, this is an ongoing concern for many employers, particularly in the care and housing sectors. The risks of getting the assessment wrong can lead to a breach of the national minimum wage regulations, which will have severe financial and reputational repercussions for the employer at a time where budgets are getting ever tighter.
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We can help with this. Our team of specialist employment solicitors can review contracts and working practices to help ensure employees are being reimbursed correctly. We can provide specialist legal advice in order to assist your organisation in reaching a decision on the application of the NMW for each employee's particular circumstances. Please get in touch and we would be delighted to assist you.