Background

The central question for the EAT to consider in the three appeals was whether employees who sleep-in are engaged in ‘time work’ for the full duration of the sleep-in shift or whether they are working only when they are awake and carrying out specific duties.

Under the Regulations, time work is defined as any time when the worker “is available and required to be available” at or near his place of work for the purposes of working.  The Regulations state that a worker will only be ‘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.

At the crux of these appeals was the issue of whether even in periods where a worker is permitted to sleep, he or she is nevertheless carrying out time work simply by being present at the workplace.

The EAT guidance

The EAT found that no single factor can determine whether sleep-ins are time work and that it will be necessary for employers to address each case on its facts. The EAT set out four factors which should be considered:

• The employer’s particular purpose in engaging the worker: for example, if the employer is subject to a regulatory or contractual requirement to have someone present that might indicate that the worker is working simply by being present. This can be distinguished from situations where there is no legal obligation for the worker to be on-site, but where the worker is provided with sleeping accommodation during an on-call period.
• The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer may be relevant. 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 leaves. 
• The degree of responsibility placed on the worker may be relevant.  The EAT differentiated between a case where all the worker needs to do is call the emergency services compared to a care assistant who may have to attend service users during a night shift. 
• Whether the worker is the person who decides 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.

What to take away

Employers in the health, social care and housing sectors will be well aware of the repercussions of a failure to comply with the National Minimum Wage Act: being named on the Government website, ordered to make up the unpaid wages and also a penalty of up to £20,000. Sleep-in shifts are common in these sectors and the case law as to what amounts to time work has often been complex and contradictory. The analysis set out in this case therefore provides some clarity. However, this remains an area which is fact specific, with the question to be determined by employers on a case by case basis. It will, no doubt, remain an area which is open to dispute.

Employers should bear in mind that there is a difference between the treatment of sleep-ins under the National Minimum Wage Act and Regulations and the Working Time Regulations 1998 (WT Regs).  Whereas the factors above will determine whether time spent asleep during on-call time is time work for the purposes of the national minimum wage, the time a worker spends during a ‘sleep-in’ (asleep or otherwise) will be classed as working time for the purposes of the WT Regs.  This does not impact on pay, but does have a bearing on rest periods and the number of hours an employee works per week.

For further information on the case and the issues it raises, please contact Elaina Moss, Raj Chahal or Amy Millson.