Labour & European Law Review Weekly Issue 525 21 June 2017
The law states that “time work” includes time when the worker is available (meaning when they are awake in order to work) at or near their place of work unless they are at home. In the three conjoined cases of Focus Care Agency Ltd, Frudd and Royal Mencap Society the Employment Appeal Tribunal (EAT) held that it could not provide a definitive answer to the question of whether workers who “sleep-in” are engaged in time work or not.
Basic facts and tribunal decisions
The three cases raised the question under section 32 of the National Minimum Wage Regulations 2015 as to whether employees who sleep-in are engaged in “time work” for the full duration of the night shift or whether they are only entitled to the national minimum wage when they are awake and carrying out relevant duties.
In Focus Care Agency v Roberts, the “waking night worker” had to be awake at all times to support the service user while the “sleep-in night worker” was there to help with any emergency that might arise but did not have to stay awake. The sleep-in night workers were paid an allowance of £25 per night. The tribunal held that the claimant was entitled to be paid the National Minimum Wage for the hours spent on the nightshift.
In Royal Mencap Society v Tomlinson-Blake, the claimant had to sleep at the house where she worked and listen out in case she was needed. She had to deal with any incidents requiring her intervention, respond to requests for help as well as handle any emergencies that might arise. The tribunal decided that the whole period of her sleep-in shifts constituted time work, irrespective of whether she was sleeping or not.
In Frudd v The Partington Group Ltd, the claimants lived on the premises where they worked and were only paid for emergency call outs during the night. The tribunal held that as they were at home, they were only entitled to be paid the national minimum wage when they were actually working, as per the decision in Shannon v Rampersad (weekly LELR 445); and the exception in Rule 32(1) relating to the worker being at home.
Acknowledging the importance of identifying a “clear dichotomy” between those cases where an employee is present at their employer’s premises and those where they are simply on-call, the EAT said that sadly there was no “single key” to unlock the meaning of words in the regulations. It accepted that this was particularly unfortunate in the care sector where sleep-in duties are very common and employers need certainty because of the potential criminal sanctions they could incur.
However, the EAT could not provide any. Instead it said that tribunals had to carry out a multifactorial evaluation which might include a consideration of:
- The reason for employing the worker. For instance, to comply with a regulatory requirement to have someone present
- The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer
- The degree of responsibility undertaken by the worker
- The immediacy of the requirement to provide services if an emergency arises
In essence, each case would turn on its own facts. As such, the EAT dismissed the appeal in in the case of Focus Care Agency on the basis that the tribunal’s conclusions were open to it on the facts and in law. It also dismissed the appeal in Royal Mencap on the basis that the worker was performing the role of a carer during the sleep-in shift. Finally, it allowed the appeal in Frudd on the basis that the judge had not carried out the multifactorial approach required.
Whilst there may be a “no size fits all” approach to considering whether a sleep-in shift should be treated as time work for the purposes of calculating national minimum wage entitlement, the decisions in Focus Care Agency and Royal Mencap do provide workers with greater certainty as to their entitlement to the national minimum wage. Generally speaking, if an employer has a regulatory obligation to have someone on the premises, the worker's responsibility is to remain present throughout the shift, and to keep a listening ear and exercise professional judgment to determine whether to intervene. The time spent performing that shift is likely to be treated as time-work. This means that all the hours spent performing a sleep-in shift, not just those spent awake, should be included in the worker’s national minimum wage calculation.