Are employees who are required to sleep at school entitled to be paid National Minimum Wage (NMW) while they sleep? This question has troubled schools, especially boarding schools, for years.
Last year, the Employment Appeal Tribunal (EAT) considered three joined appeals which all grappled with this question: Focus Care Agency Ltd v Roberts, Royal Mencap Society v Tomlinson-Blake and Frudd v Partington Group Ltd . The EAT’s decision will come under scrutiny in the Court of Appeal in March to determine whether the EAT’s approach was correct.
The EAT was tasked with considering whether, under the National Minimum Wage Regulations 2015, night-shift workers who sleep on site in order to carry out duties (if the need arises) should be viewed as engaged in “time work” for the duration of the shift so as to be entitled to NMW; or whether they are only entitled to NMW when they are awake and actually carrying out duties.
This would apply to boarding staff and facilities staff who are required to be readily available should an emergency occur during the night, or other staff who live in school accommodation – boarding schools will be especially interested in the Court of Appeal’s review.
The EAT determined that it is necessary to conduct a “multi-factorial” evaluation, based on the unique facts of each case.It set out four potentially relevant factors to determine whether a person is working simply by being present, even if they are asleep:
1. The employer's particular purpose in engaging the worker - to the extent that this informs what the worker might be expected or required to do. For example, the DfE Boarding School National Minimum Standards require schools to be ‘adequately staffed’ with boarding parents present and responsible for boarders in the house. Such requirements weigh in the balance of 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 the extent to which the worker is required to remain on the premises. This would impact houseparents, facilities and security staff who are required to remain on site during the night.
3. The degree of the responsibility undertaken by the worker - this may vary depending on the role in question, although all staff are responsible for safeguarding children. Houseparents may have greater personal responsibility in connection with duties that might have to be performed during the night, in the event of an emergency.
4. The immediacy of the requirement to provide services if something untoward occurs or an emergency arises - A houseparent is likely to be woken in the first instance to decide what action may be required, in response to issues arising directly in a boarding house, whereas facilities or security concerns may be raised by other staff.
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 considered on a case-by-case basis.
The first step is to consider whether the contract of employment provides for the period in question to be part of the employee's working hours.Where there is a regulatory reason for the presence of staff, it is more likely for all the time to warrant NMW.Whereas, staff present for mere mutual benefit or convenience would be more likely to fall outside the NMW requirement.
Where residential staff are also engaged in other teaching duties, the salary is likely to be higher, in conjunction with accommodation offset allowances, so as to exceed NMW.
The risk for a school is the potential liability for backdated payments of up to six years. The Court of Appeal’s pending ruling will be greatly anticipated by all schools engaging residential workers.
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