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11 July, 2017

“Sleep-in” shifts and the National Minimum Wage

Posted in : July/August 2017 on by : gap personnel Tags: , ,

Employers who require workers to work “sleep-in” shifts have no doubt had to consider the difficult question of whether workers who sleep in to enable them to fulfil their duties if required, carry out “time work” for the entire duration of their shift. If not then, technically they are only entitled to be paid the relevant National Minimum Wage (“NMW”) when they are awake and carrying out their duties.

The Employment Appeal Tribunal (“EAT”) recently, and to some degree unhelpfully, addressed this issue in the three joined appeals of: Royal Mencap Society v Tomlinson-Blake; Frudd v The Parington Group Ltd; and Focus Care Agency Ltd v Roberts. This article discusses the guidance provided by the EAT. It goes on to provide tips for employers in practice.

This is an important consideration because employers need to ensure that they are fulfilling their duties under the National Minimum Wage Regulations 2015 (SI 2015/621) (“NMW Regulations 2015”). An individual who does not receive the NMW is entitled to bring a claim for either an unlawful deduction from wages or a breach of contract. If such a claim is successful an employer may face civil and/ or criminal sanctions.

The relevant Regulations from the NMW Regulations 2015 for the purposes of the above cases are Regulation 30 and Regulation 32. Regulation 30 defines time work as inter alia, a “reference to the time worked by the worker”, for example hourly-paid work. Regulation 32 provides that: “(1) time work includes hours when a worker is available, and required to be available, at or near a place of work for the purposes of working unless the worker is at home” and “(2)… a worker is “available” when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping.”

Multifactorial approach

The EAT held that there is no “single key” to apply these Regulations in practice.

In relation to Regulation 30, the EAT held that a multifactorial approach should be applied. The factors to be considered include:
(i) The employer’s specific purpose in engaging the worker. For example, is there a regulatory or contractual requirement to have an individual present during the specific period in which the worker is engaged?
(ii) The extent to which the worker is restricted by the requirement to be present on the premises and at the disposal of their employer. For example, would the worker be subjected to disciplinary action if they left the premises?
(iii) The degree of responsibility imposed upon the worker. The EAT contrasted the limited duty of sleeping-in at premises and making an emergency services call in the case of an emergency with a night sleeper in a home for disabled people where a more significant responsibility is imposed on them with regards to the duties they may have to perform.
(iv) The immediacy of the requirement to provide services in the case of an emergency. For example, does the worker decide whether to intervene and then deal with the situation as appropriate, or is the worker woken by another worker who has immediate responsibility for intervening?

It was held that none of the above are determinative and the weight applied to each factor will vary on a case-by-case basis.

EAT’s findings

Royal Mencap Society v Tomlinson-Blake
This case concerneda care worker who provided support and care for two vulnerable adults with learning difficulties andwas required to carry out sleep-in shifts. The EAT dismissed the appeal and upheld the Tribunal’s earlier decision that the Claimant was carrying out “time work”, for the purpose of the NMW Regulations 2015, forthe entire duration of her sleep-in shifts, whether asleep or not. The Tribunal placed weight on the following: the Claimant had to be present for the “proper performance of her duties” and to enable the Respondent to comply with its legal obligations imposed by the local authority; the Claimant would have been disciplined if she left the premises and the Claimant had to use her professional judgement to decide whether intervention was necessary. The EAT held that these were relevant factors to consider and its approach enforces that each case will turn on its own facts.

Frudd v The Parington Group Limited
This case concerned a married couple who were on-call for two/ three nights a week. They were required to remain on the premises of a caravan site for the duration in which they were on call to respond to any emergencies should they arise. The Tribunal held that the exception to time work, being that “the worker is at home”, in Regulation 32(1) of the NMW Regulations 2015 applied. The judgment therefore concluded that the Claimants were only entitled to be paid the NMW for the time spent actually working.

The EAT was dissatisfied with the weight attached to the contract of employment between the employer and the worker and held that this is not determinative of the relationship in practice.The EAT referred the case back to the Tribunal, to consider, in light of the multifactorial approach, the extent of the Claimants’ responsibilities during the sleep-in shift and the extent of their obligation to remain at the caravan site during the sleep-in shift. This hearing is currently pending.

Focus Care Agency Ltd v Roberts
This case concerned a “waking night worker” who was required to be awake at all times during shifts and to provide support to the service user; and a “sleep-in night worker” who was provided with sleeping facilities, was not required to remain awake and was only required to assist the “waking night worker” in an emergency.

The EAT, in dismissing the appeal, held that there had been no contractual arrangement that Mr Roberts was only entitled to an allowance of £25 per “sleeping-in” shift, as opposed to a full hourly rate of pay. Whilst Focus sought to suggest that this was agreed at the interview process, it was noteworthy that when issuing a contract of employment to Mr Roberts, the terms stated that they covered the entirety of the arrangement between the parties and superseded any prior oral agreement. Accordingly, even if the allowance rate had been referred to at interview, it was no longer a contractual arrangement.

In the alternative, Focus sought to argue that there had been a variation to the contractual terms to introduce the £25 allowance rate because Mr Roberts did not challenge his payslips showing the allowance rate. The EAT held that “silence” on Mr Roberts’ part was insufficient to permit a contractual variation.

Consequently, Mr Roberts was entitled to his full contractual rate of pay during any sleeping-in shift.

Considerations for employers

Although the above judgments do not provide a set test or decision as to how sleep-in shifts should be considered for NMW purposes, they do highlight that each employer should consider its individual circumstances. These cases therefore represent valuable reference points on “factual situations” which may arise.

In light of the above, it is recommended that employers should initially review their contracts of employment toevaluate whether they specify for any periods of sleep-in shifts to form part of the worker’s working hours. In turn this should help evaluate whether or not workers are receiving the NMW. Employers should also consider the multifactorial points discussed above to assess their level of risk in practice which will help to minimise the risk of any successful claims being pursued by the worker.

For any further advice regarding national minimum wage, please contact the head of employment law at Aaron and Partners LLP, Helen Watson on 01244 405565 or helen.watson@aaronandpartners.com