The decision of the Employment Appeal Tribunal (EAT) in the three joined appeals of Focus Care Agency Ltd v Roberts, Royal Mencap Society v Tomlinson-Blake and Frudd v Partington Group Ltd  will come under scrutiny by the Court of Appeal in March when it will consider whether it is satisfied with the EAT’s approach to the correct treatment of sleep-in shifts under the National Minimum Wage Regulations 2015.
The EAT was tasked with considering whether night-shift workers who sleep on site in order to carry out duties (if required) engage in “time work” for the duration of the shift, or whether they are only entitled to the National Minimum Wage (NMW) when they are awake and carrying out duties.
It was determined by the EAT that the correct approach is to conduct a multi-factorial evaluation in order to distinguish the cases where an employee is working “merely by being present at the employer’s premises” (whether or not they are provided with sleeping accommodation) from those scenarios where “the employee is provided with sleeping accommodation and is simply on-call” and available.
The first step is to consider whether the contract provides for the period in question to be part of the employee's working hours as a matter of construction. It may be useful to consider whether the contract provides for pay to be calculated by reference to a shift or whether an identifiable period is specified during which work is to be done.
This analysis, the EAT suggested, could be carried out by considering four potentially relevant factors to determine whether a person is working by being present, even if they are asleep:
1. The employer's particular purpose in engaging the worker, to the extent that it informs what the worker might be expected or required to do. For example, a regulatory or contractual requirement might indicate whether and the extent to which the worker is working by simply being present.
2. 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 required to remain on the premises throughout the shift.
3. The degree of the responsibility undertaken by the worker. There is a limited degree of responsibility in sleeping at the premises to call out the emergency services in case of a break-in, whereas a night sleeper in a home for the disabled has a heavier personal responsibility in relation to duties that might have to be performed during the night.
4. The immediacy of the requirement to provide services if something untoward occurs or an emergency arises. It may be that the worker is the person who decides whether to intervene and then intervene when necessary, or that the worker is woken as and when needed by another worker with immediate responsibility for intervening.
Crucially, it is clear from the EAT’s approach that the process of determining whether a sleep-in worker qualifies for NMW is a fact sensitive exercise to be performed by employers on a case-by-case basis. The Court of Appeal’s ruling later this year will be one greatly anticipated by employers and sleep-in workers alike. With employers currently obligated, at the request of a worker, to review the history of sleep-in shifts for NMW purposes – potentially leading to the employer making backdated payments of up to six years – it is clear that employers and workers will have firmly divided feelings on the appeal’s outcome.
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