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A recent decision by the Employment Appeal Tribunal (EAT) has concluded that a multi-factorial approach is required in order to determine whether workers should be entitled to the National Minimum Wage when they are on call or sleeping at work.

The leading case on this is Focus Care Agency v Roberts UKEAT/0143/16, albeit three cases were heard at the same time, in order to establish whether time spent sleeping at work could be classed as time spent working. The other two cases were Frudd & Frudd v The Partington Group Ltd and Royal Mencap Society v Tomlinson-Blake.

In Focus, Mr Roberts’ role involved undertaking sleep-in shifts. This meant sleeping at work was permitted but he needed to attend to patients if necessary. Consequently, Mr Roberts was not able to sleep for long durations because of the demands of his role. The Employment Tribunal held that Mr Roberts was entitled to the National Minimum Wage throughout his shift, since he was continuously on call.

The respondent appealed and the EAT held that there is no conclusive outcome as to whether sleep-in workers are entitled to the National Minimum Wage, disagreeing that presence at the place of work means a worker is entitled the minimum wage.

Sleeping at work and payment

Instead, the EAT held that Mr Roberts was working throughout his sleep-in shifts and should have been paid the National Minimum Wage for the whole duration of his shifts. Further, the EAT stated that each case needs to be decided on its own merits and set out four factors to assist.

The four factors specified are:

  • The employer’s particular purpose in engaging the worker;
  • 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 that is being undertaken by the worker;
  • The immediacy of the requirement to provide services if something untoward occurs or an emergency arises.

National Minimum Wage

As there is no definitive answer on whether such workers are entitled to the National Minimum Wage when they are on call or sleeping at work, the onus is on the employer to ensure that they have fully considered the circumstances surrounding the role that a worker is required to carry out before making a decision on whether a payment should be made.

Employers should be cautious in making such decisions, as the wrong decision can lead to criminal and civil sanctions. Therefore, consideration should be given to seeking legal advice.

This decision also highlights the flexibility that a tribunal has in determining such cases, and shows the importance that is placed on evaluating the individual facts and that each case needs to be considered independently.

Accordingly, workers may try to challenge their employers if they are not currently entitled to the National Minimum Wage, since there is no rigid framework outlining when this entitlement to pay arises.

Night work

This will no doubt increase the concerns of employers who will be affected by this decision, so it would be particularly beneficial for employers to review both the working and pay arrangements of workers that are required to work at night.

A useful starting point for any employer is the four factors set out above. These factors will play a role in deciding how much workers will be paid for such shifts; therefore, employers need to take into consideration their financial situation.

However, a cautious approach should be taken and the facts of each case need to be examined thoroughly. It is not as straightforward as determining that the National Minimum Wage should not be paid to a worker because they have not been working, since defining when a worker has been working can be a difficult issue. An employer may need to pay a worker for the whole duration of a shift or may only be required to pay for the parts when the worker is awake and undertaking duties.

Employers will need to pay attention to further developments in this area in order to ascertain how the tribunal and EAT deal with such matters in the future.

For more information on any of the issues raised in this article or on employment issues in general, please contact Fawziyah Javed in our Leeds Employment team by emailing [email protected] or calling 0113 368 7825.