Workers in some sectors, such as residential care and hospitality, may be permitted to sleep at work during their night shift in order to be on hand should a need arise. How much workers should be paid for this shift was recently addressed in three cases heard jointly by the Employment Appeal Tribunal (EAT).
In summary, the EAT found that a distinction should be drawn between someone who is working "merely by being present at the employer’s premises" (and thus entitled to at least the National Minimum Wage (NMW)) and someone who only needs to be "available" to work (and has no right to the NMW). The EAT emphasised that the category into which a particular case will fall will turn on the specific facts.
The appeal of Royal Mencap Society v Tomlinson-Blake concerned a care support worker who regularly spent a night shift at the private homes of individuals requiring specialised care. During that shift she had to "keep a listening ear out" and intervene when necessary (such as if a resident was unwell) but otherwise had no specific tasks and was allowed to sleep. Tomlinson-Blake's total pay for the nine-hour shift came to £29.05, less than the NMW. When she had to wake up to intervene during the sleep-in hours, and where this took longer than an hour, she was entitled to additional remuneration.
Tomlinson-Blake argued that she should be paid the NMW for all of the hours of her shift as she was working “simply by being present in the house throughout her sleep-in shift whether or not she is awake”. Mencap disagreed noting that she only had to be "available" and thus the time spent asleep did not count as work for the purposes of the NMW. This was despite the fact that the need to intervene was “real but infrequent” (in Tomlinson-Blake’s case, it occurred only six times in 16 months).
In the first instance hearing, the Tribunal sided with Tomlinson-Blake, noting “the fact she may have had little or nothing to do during sleep-in shifts and was entitled to sleep did not detract from the fact that she was required to be there”. It stressed that she was not merely on call but had to be there both for the proper performance of her duties and to enable her employer to meet its legal duty to provide an appropriate level of care.
The EAT agreed and dismissed Mencap's appeal, concluding it was right that Tomlinson-Blake be paid at least the NMW for each of the nine hours of the shift. It found that the Tribunal was correct to consider whether the employee’s status was of someone who was actually working as opposed to merely being available for work. It also endorsed the Tribunal’s use of a 'multifactorial evaluation' to determine whether a person is working simply by being present. This evaluation involves a consideration of:
(1) the employer's particular purpose in engaging the worker;
(2) the extent to which the worker's activities are restricted by the requirement to be present and at the disposal of the employer;
(3) the degree of responsibility undertaken by the worker and the types of activities that they may be called upon to perform; and
(4) the immediacy of the requirement to provide services if something untoward occurs or an emergency arises.
As a result of the EAT’s findings, employers who operate sleep-in shifts, and in particular those who are paying workers on those shifts less than the NMW, will want to review their practices to ensure they have taken into account all the relevant factors in assessing whether or not those individuals are in fact ‘working’ while they sleep.
Written with Morgan Wolfe, Trainee Solicitor