Sleep-in Shifts, On-Call and Working Time
Our second and third case on the NMW is whether workers are entitled to the NMW whilst on call or sleeping at work.
The legal background
Under the NMW Regs, workers are entitled to be paid the NMW for “time work”, which is generally time that the worker actually spends working. Under special rules in the NMW Regs where a worker is “required to be available at or near [their] place of work for the purposes of working” this will count as ‘time work’.
In three co-joined appeals (Focus Care Agency v Roberts; Frudd and another v The Partingdon Group Ltd; Royal Mencap Society v Tomlinson-Blake) the EAT had to consider whether night-shift workers who sleep in, in order to carry out their duties if required are entitled to be paid the NMW for the duration of the shift, or only when they are awake and carrying out duties.
In the first case, the Claimant had to do sleep-in shifts where no specific tasks were allocated, but where there was a continuing obligation to be vigilant to the needs of patients in case she was needed to deal with any incidents, which meant she did not get that much sleep. The ET held that the carer was performing time work throughout her shift so was entitled to be paid the NMW throughout that shift.
In the second case, the Claimants were on site-wardens at a caravan park where they lived and were only paid for call outs that arose during the night. As the Claimants were at home, the ET held they were only entitled to the minimum wage whilst actually working.
In the third case, there were two types of night worker, waking and sleep-in. Waking had to be awake throughout the night and sleep-ins were on site, but only had to work if called upon. Sleep-in workers were paid a flat rate of £25 per night, whereas waking were paid the NMW. The ET held that both should be paid the NMW.
In determining whether workers are engaged in ‘time work’, the EAT held that a multifactorial test was necessary and they set out four potentially relevant factors to be considered. These factors were:
- The employer’s purpose in having the employee present. For example, a regulatory requirement to have someone present at all times might indicate that a worker is working simply by being present.
- The extent to which the worker’s activities are restricted on the requirement to be present and at the disposal of the employer. This may include considering whether the worker would be disciplined if they do not stay on the premises during the shift or whether they are free to come and go.
- The degree of responsibility placed on the worker and the types of activities that they might be required to perform.
- The immediacy of the requirement to provide services if something untoward occurs or an emergency arises.
The EAT upheld the ET’s decision in the first and third cases, but held that the second case had been wrongly decided as the multifactorial approach should be applied.
This provides useful clarification for employers on when they will be expected to pay the NMW for employees who are required to sleep on site as part of their duties. It should be noted that no single factor will be determinative and each case will turn on its own facts.
Employers should ensure that contracts of employment accurately reflect what happens on the ground.