Are workers entitled to the national minimum wage when 'on-call', or sleeping, at work? In a comprehensive decision, the Employment Appeal Tribunal (EAT) decides 'it depends'.
In three cases heard at the same time (with the lead case being Focus Care Agency v Roberts), the Judge (Mrs Justice Simler) considered whether three tribunals had correctly decided whether 'sleep-in' time counted as 'time work' for the purpose of the National Minimum Wage Regulations. This issue is extremely important, particularly for boarding schools. If a school gets it wrong, criminal sanctions could follow. However, the EAT was unable to give a straight 'yes' or 'no' answer. What is interesting is that the EAT disapproved of the approach sometimes adopted of cases where a worker is ‘working’ merely by being at the premises, and cases where the worker is provided with accommodation and is simply on-call.
The EAT identified four potentially relevant factors that that should be considered when determining whether a worker is ‘working’ and held that no single factor is determinative. Accordingly, the weight each factor carries (if any) will vary according to the facts of the particular case. The four factors set out by the EAT are:
- The employer’s particular purpose in engaging the worker may be relevant to the extent that it informs what the worker might be expected or required to do: for example, if the employer is subject to a regulatory or contractual requirement to have someone 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 present.
- The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer may be relevant. This may include considering the extent to which the worker is required to remain on the premises throughout the shift on pain of discipline if he or she slips away to do something else.
- The degree of responsibility undertaken by the worker may be relevant. In one of the cases being considered, there was a distinction between the limited degree of responsibility in sleeping in at the premises to call out the emergency services in case of a break-in or a fire on the one hand (e.g. a school caretaker), and a night sleeper in a home for the disabled where a heavier personal responsibility is placed on the worker in relation to duties that might have to be performed during the night. The latter example is closer to the level of responsibility that would be placed on a member of a School’s boarding staff.
- The immediacy of the requirement to provide services if something untoward occurs or an emergency arises may also be relevant. In this regard, it may be relevant to determine whether the worker is the person who decides whether to intervene and then intervenes when necessary, or whether the worker is woken as and when needed by another worker with immediate responsibility for intervening.
The effect of this decision is that each case will need to be considered very carefully on its own facts and an employment tribunal will have considerable leeway in reaching a decision.
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