Can workers receive payment for ‘sleeping’ at work?!

The Employment Appeal Tribunal (EAT) has recently considered this question, more specifically whether workers are entitled to the national minimum wage when ‘on-call’ (or sleeping!) at work.

In the case of Focus Care Agency v Roberts, along with two other cases heard at the same time (Frudd v The Partington Group Ltd and Royal Mencap Society v Tomlinson-Blake), Mrs Justice Simler (President of the EAT) assessed whether the Tribunals had been correct in deciding whether ‘sleep-in’ time should be considered ‘time work’ for the purposes of the National Minimum Wage Regulations.

The EAT essentially concluded that it depends on the circumstances – although it disapproved of the approach taken where workers are deemed to be working simply by being present on the employer’s premises or even provided with accommodation when being on-call. The EAT decided that a multi-factorial approach was required, or in other words it depends on the facts of each case.

Employers will obviously be asking themselves at this point how you differentiate between cases where a worker is “working” throughout a sleep-in shift, being paid to be on the employer’s premises “just in case”, and those where a worker is “on call” and not deemed to be working the entire time? The EAT guidance provided is as follows:

Consider the employment contract in addition to the nature of the engagement and the work to be carried out. Does the contract provide for the period in question to be part of the employee’s working hours? Depending on the facts of the case it may be appropriate to consider whether the contract provides for pay to be calculated by reference to a shift or by reference to something else, and if so, to what; or to whether a period is directly specified during which work is to be done.
The fact that a worker has very little/nothing to do during certain hours does not mean that they are not working. A particular level of activity is not required. An individual can be working simply by being present even if they are simply required to deal with unexpected circumstances, but are otherwise entitled to sleep – this is the case even where the likelihood and frequency of an untoward matter arising is low.
No single factor is determinative and the weight each factor carries varies according to the facts of the particular case in question. Potential relevant factors in determining whether a person is working by being present include:

slave labour in a modern context?

Earlier this summer, a case brought in the Administrative Court by two benefits claimants made the headlines when two schemes requiring claimants to join unpaid work experience schemes on pain of losing Jobseeker’s Allowance were challenged. In one, a geology graduate already working as a volunteer in a museum in pursuance of her ambition to secure a paid job in the museum sector was expected, instead, to work in Poundland for two weeks, although this meant it cost her her voluntary position. In the other a qualified HGV driver was required to undertake a full time voluntary position for six months on an unpaid basis.
Much of the judgment of the court in Reilly & Another, R (on the application of) v Secretary of State for Work & Pensions was concerned with issues of maladministration and whether the schemes were within the statutory powers of the DWP, which are important issues but not issues of employment law. The crucial issue that made the case newsworthy, and does have an employment flavour, was whether these schemes represented “forced labour” and were thus contrary to Article 4 of the European Convention of Human Rights. Mr Justice Foskett took the view that while opinions might differ as to the appropriateness or effectiveness of such schemes they are “a very long way removed from the kind of colonial exploitation of labour that led to the formulation of Article 4”and so could not be called “forced labour“ or “slavery”.