Are workers entitled to the national minimum wage when they are on standby or sleeping at work?

A decision of particular importance to the care sector the Employment Appeal Tribunal, EAT recently reviewed the position on how those who perform standby shifts or who are required to sleep at work should be paid.

A number of industries require workers to sleep in on the premises or be on standby throughout the night to work if needed. The EAT recently considered whether the whole of this time should be classed as “working time” (time for which the national minimum wage should be paid) or whether the individuals would only be deemed to be working when they are actually awake and performing allocated duties.

In hearing three linked cases on this issue the EAT decided that there are a number of factors to be considered when deciding what should count as working time and that each case will turn on its individual facts. The EAT set out four potentially relevant factors:

1. The employer’s purpose in engaging the worker i.e. is the employer subject to any regulatory or contractual requirement to have someone present during the particular period the worker is engaged to be present.
2. The extent to which the workers activities restricted by the requirement to be present and at the employer’s disposal i.e. is the worker required to remain on the premises throughout the shift and would they risk disciplinary action if they left the premises.
3. The degree of responsibility undertaken by the worker.
4. The immediacy of the requirement to provide services if something untoward occurs or an emergency arises.

In the first linked case before the EAT, a care worker supporting vulnerable adults worked a sleep in shift where no specific tasks were allocated, but she was required to remain at her post and to keep an ear out in case her help was needed to deal with any incidents during the night. In what was deemed to be a crucial factor, the individual would have been disciplined if she had left her post as this would have put her employer in breach of its legal obligations. Applying their own factors the EAT considered that the worker’s whole shift should be classed as working time for national minimum wage purposes.

In another of the linked cases a husband and wife were employed as a receptionist/warden team at a caravan park. They were contractually obliged to reside on the premises in one of the caravans and, in addition to their normal working hours, were required to work on call shifts via a rota. During the on-call shifts both were contactable for emergencies via a pager and mobile phone and paid £8.50 per call out. The ET had considered that because the employees were at home during the on-call shift they were only entitled to NMW for the time spent actually working and therefore the £8.50 fee per call out was adequate. The EAT however considered that the case should be remitted to the ET for reconsideration in light of the 4 stage test above.

Although It is clear that each case will turn on its individual facts, the four factors highlighted by the EAT for consideration in these cases provides very useful guidance to employers who engage sleep-in or on-call workers. It is clear that in light of this guidance, such employers will need to carefully consider their staffing practices and whether they are complying with minimum wage legislation. The impact of this judgment is likely to be felt most in the care sector where there is normally a legal requirement for workers to sleep in on the premises, a high level of responsibility and a need for immediate response in the event of an emergency.