As we have covered in our previous ebulletins, the position regarding pay for workers who carry out ‘sleep in’ shifts (sometimes also known as ‘on call’ or ‘standby’ shifts) has been the subject of a number of decided cases. However, although there have been several cases which found that National Minimum Wage (NMW) was payable throughout a sleep in shift, there were also some that pointed in the opposite direction.
Recently the Employment Appeal Tribunal (EAT) was asked to rule on three cases which had been joined because they raised similar points of law (Focus Care Agency Ltd v Roberts; Frudd and another v The Partington Group Ltd; Royal Mencap Society v Tomlinson-Blake (2017)). I have been taking a close interest in the law in this area for a number of years now and like many others, I had hoped that the judgment would help give some clarity to this tricky area which has significant implications, particularly in the social care sector (one of the cases involved a carer employed by Mencap, and another was an employee of a care agency). So what did the EAT decide, and what does this mean for employers and employees where sleep ins are concerned?
Unfortunately, the EAT shied away from a definitive approach in the cases, saying that a “multifactorial” approach is needed, and that each case will depend on its own facts. While that is understandable to a certain extent, it does mean ongoing uncertainty for those involved in these situations.
The EAT did however give guidance on the kind of factors that might be relevant when considering whether NMW is payable throughout a sleep in shift. These included:
- Whether there is a regulatory or contractual requirement to have someone present during the particular period (in which case it could be argued that the worker is ‘working’ just by being present, even if they are asleep)
This reflects some of the previous case law, including the Scottbridge case where a night watchman successfully argued that he should be paid NMW throughout his shift because he was effectively working just by being there.
- To what extent the worker’s activities are restricted by needing to be present and at the disposal of the employer (e.g. whether they have to stay on the premises and would be disciplined if they did not)
- How much responsibility the worker has – the EAT drew a distinction between someone who may just be present to alert the emergency services if a break in or fire occurs, as opposed to someone who may have a personal responsibility to resolve any problems that may occur
- How immediate the need for services might be. A distinction could be drawn between a situation where the sleeping person is the one who would need to intervene, or whether they are woken to assist another person who has the immediate responsibility for intervening.
The above three factors are particularly relevant to the social care sector, where it is common for sleeping in workers to have responsibility to stay on site and to help the service users they are caring for if a situation arises. Some employers do operate a system where one member of staff is awake, but can call upon the sleeping in worker to assist if necessary. The EAT’s test suggests that this might potentially help an employer to argue that the sleeping in worker is not entitled to NMW – but it will of course depend on all of the rest of the circumstances as well.
Many employers (and employees) will feel it is a shame that the opportunity was not taken to give greater certainty in this difficult area. I expect this case is highly likely to go to appeal, in which case the Court of Appeal will be the next stage, and hopefully some more definitive guidance will result. In the meantime, if you are an employer dealing with ‘sleep ins’ and you currently do not pay an average of at least NMW to your sleeping in staff, it would be best to take specialist advice as to how this new “multifactorial” test might apply to your situation. We have advised several clients in various sectors about this tricky area of law – do get in touch to find out how we can help.
Do you have workers on call or carrying out ‘sleep in’shifts? If so, do you need advice about the employment law issues related to those workers? We can help! Please contact any member of the Pure Employment Law team (01243 836840 or enquiries[email protected]).