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:
- The employer’s particular purpose in engaging the worker. For example, if the employer is subject to a legal requirement to have a worker present during the particular period the worker is engaged to be present, that might indicate whether and the extent to which the worker is working by simply being there
- The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer. This may include considering the extent to which the worker is needed to remain on the premises throughout the shift and whether they would be subject to disciplinary proceedings if they failed to do so.
- The degree of responsibility undertaken by the worker. There is a difference between the degree of responsibility in sleeping at the premises to call out the emergency services, in case of a fire for example (this would indicate ‘not working’), and a night worker in a care home who is permitted to sleep, but where there is a greater responsibility placed on the worker with regards the potential duties to be performed that night (indicates ‘working)
- The immediacy of the requirement to provide services if something an unexpected event or an emergency arises. Is the worker concerned the person who actively decides to intervene when necessary (indicates ‘working’), or is the worker called for as and when needed by another worker with immediate responsibility for intervening (indicates ‘not working’).
If you are either an employer or employee and feel that the above may have an impact on you/your business, please contact Katharine Kelly on 0151 239 1079 or firstname.lastname@example.org for a detailed assessment of your position.