A hot topic within the employment sector is the question of whether ‘sleeping time’ should be classed as ‘working time’ for the purpose of National Minimum Wage Regulations (NMWR).
The aim of this deliberation is to determine whether employees should be paid for hours spent sleeping whilst technically being ‘at work’. Many would declare that their dream job would be getting paid to sleep, but is there a valid argument to support this?
Clear examples of employment where an employee may be expected to sleep at their employer’s premises include care or support workers at children’s homes or assisted living homes for adults requiring care. It goes without saying that children and adults with disabilities cannot be left unsupervised as they may require assistance at any time – this requires one or more employees to be present at the employment premises at all times, including through the night.
Whether awake or asleep, this begs the question of whether a person is working simply by being present?
The Employment Appeals Tribunal (EAT) recently shed some light on this debate in the case of Focus Care Agency v Roberts. In this case, the Respondent employer provided supported living services and required two members of staff to work the night shift. This included a “waking night worker” who had primary responsibility for the service user and was obliged to remain awake throughout the night. The other was a “sleep-in night worker” who was able to sleep but could have been required to assist with an emergency situation. The claimant in this matter was the “sleep in night worker” who disputed receiving a flat rate of £25.00 for the hours they were permitted to sleep, as opposed to their normal hourly rate of pay which they would receive for non sleeping hours. Here, the EAT considered the question of the proper approach under the NMWR to time spent asleep during a “sleep-in” shift.
The EAT found in the claimant’s favour, as the particular factors of this case led them to the conclusion that during the sleep in shift, the claimant was still performing time, even while sleeping.
It is important to note, however, that although the EAT found in favour of the claimant on this occasion, this decision does not serve to set a strict precedent for future cases of this kind. The EAT made this decision based purely on the individual facts of this case, indicating that that the individual facts of any future cases will be subject to the same scrutiny and may not necessarily result in the same outcome.
That said, to assist the Employment Tribunal (ET) going forward, the EAT did provide a set of four potentially relevant factors to be taken into consideration when hearing future cases. No single factor is determinative in isolation and the weight of each factor may vary depending on the specific circumstances of the case at hand.
The four factors indicated by the EAT are as follows:
- 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. 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 the case of Wray & J W Lees, the EAT distinguished 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, 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 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.
When considering the above factors against the facts of the Focus Care Agency case, it is apparent why the EAT found in favour of the claimant care worker.
The claimant was contractually required to be present at all times during the relevant hours so as to be on hand to assist their colleague should a situation arise in which they were needed i.e. the claimant was restricted from leaving the premises at all relevant times. The claimant undertook a significant degree of responsibility by being one of two people responsible for the wellbeing of dependant service users. Finally, the claimant was expected to act with a degree of immediacy if awoken by their colleague in the event that an emergency arose.
This multifactorial approach will mean that matters will be decided on a case by case basis for the time being. However, it will be interesting to see how the application of these guidelines will shape the law as more cases are heard.
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