In the case of Focus Care Agency Limited v Roberts, the Employment Appeal Tribunal (EAT) has considered and reviewed recent case law in this difficult area and has provided some helpful guidance.

The issue for consideration

If employees sleep-in in order to carry out duties if required, are they engaged in “time work” for the full duration of the night shift and therefore entitled to be paid the National Minimum Wage for the duration of the night shift? Or are they are only entitled to the National Minimum Wage when they are awake and carrying out the relevant duties?

The EAT held that a multi-factorial evaluation is required. No single factor is determinative and each case will depend on the circumstances of the particular situation. The fact that a worker has little or nothing to do during certain hours does not mean she/he is not working; work is not equated with any particular level of activity and can include merely being present to deal with something untoward that might arise.

The EAT set out the following factors to consider when determining whether a person is “working” by being present:

  • the employer’s particular purpose in engaging the worker, e.g. if there is a regulatory or contractual requirement to have someone present;
  • the extent to which the worker’s activities are restricted by the requirement to be present and be at the disposal of the employer, including whether the worker would be subjected to disciplinary sanction for leaving the premises;
  • the degree of responsibility undertaken by the worker during the period. For example, a requirement to sleep-in and to call the emergency services in the case of break in or fire compared and contrasted with a requirement to respond to any problems experienced by a resident in the night;
  • the immediacy of the requirement to provide services if something untoward occurs or an emergency arises may also be relevant For example, whether the worker is the person who decides whether to intervene and then intervenes when necessary, or whether the worker is waken as and when needed by another worker with immediate responsibility for intervening.

Conclusion

This case has provided a helpful summary of the factors that need to be considered when determining whether a worker who is required to sleep-in should be paid the National Minimum Wage for the total period of the sleep-in shift or whilst the worker is awake and undertaking duties.