“Sleeping-in” and the National Minimum Wage
Are workers entitled to the National Minimum Wage (NMW) when “on call” or “sleeping-in”? “It depends” confirmed the Employment Appeal Tribunal (EAT) in the combined cases of Focus Care Agency -v- Roberts, Frudd -v- Partington and Mencap -v- Tomlinson-Blake.
In these cases, the EAT considered whether the respective Employment Tribunals had correctly determined whether the time spent asleep by a night worker required to “sleep-in” counted as “time work” for NMW purposes.
The EAT confirmed in the lead case of [Focus Care Agency -v- Roberts], that a multi-factorial approach must be adopted to determine whether a worker is working merely by being present at the workplace (even if asleep) or whether they are “available, and required to be available, at or near their place of work for the purposes of working” and therefore subject to the special rules set out in Regulation 32 of the National Minimum Wage Regulations 2015. This special rule further states however that hours when a worker is “available” only includes hours when they are awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping.
It is necessary therefore to distinguish whether the worker is required to sleep at or near the place of work, or to be “available for work” in order to determine what the workers are entitled to be paid. The EAT explained that the following were potentially relevant factors to be considered when determining this question:-
- The employer’s particular purpose in engaging the worker (for example, a regulatory requirement to have someone present at all times might indicate that the worker is working simply by being present);
- The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer;
- The degree of responsibility undertaken by the worker and the types of activity they may be called upon to perform; and
- The immediacy of the requirement to provide services if something untoward occurs or an emergency arises
These appeals do not provide employers who employ staff who work on “sleep-in” shifts with a definitive answer to the important question of whether such employees are entitled to be paid the NMW for the whole of their shifts or just for the time they are awake for the purposes of working. Such affected employers are urged to take advice in advance however given the hefty consequences of failing to pay the NMW if the worker is entitled to receive it.