In three joined appeals (the lead case being Focus Care Agency v Roberts UKEAT/0143/16), the Employment Appeal Tribunal (EAT) considered whether night shift workers who sleep in, in order to carry out duties if required, are carrying out "time work" for the full duration of the shift and are therefore entitled to be paid the national minimum wage (NMW) for the full duration of the shift, or whether they are only entitled to the NMW for the time when they are awake and carrying out duties.

Employment tribunal decisions

In the first case, the claimant carer was not allocated any specific tasks during her shift and could sleep. However, during the night she had sole responsibility for keeping a listening ear and using her professional judgement and detailed knowledge to decide whether or not to intervene. The employment tribunal (ET) held that during the sleep-in shift, the claimant was performing time work and was therefore entitled to be paid the NMW for the full duration of the shift.

In the second case, the claimant wardens lived on site at the caravan park where they worked and were on call during the night. They were paid a flat rate per call out. The ET held that the claimants were at home and therefore only entitled to be paid the NMW when they were actually working.

In the third case, the claimant was a sleep-in night worker who was employed to assist with any emergency that might arise. He was not required to be awake and was provided with facilities for sleeping. He was paid £25 for each nightshift. The ET held that the claimant was entitled to be paid the NMW for the hours spent on the nightshift.

The losing party in each case appealed to the Employment Appeal Tribunal.

Employer Appeal Tribunal decision 

The EAT emphasised that each case is likely to turn on its own facts. The proper approach is to start by considering whether the individual is working during the period for which he or she claims. This requires consideration of the contract together with the nature of the engagement and the work required to be carried out. ETs should consider whether the contract provides for the period in question to be part of the employee's working hours in the light of the terms of the contract itself and the factual matrix and, if relevant, whether the contract provides for pay to be calculated by reference to a shift or something else.

Crucially, the fact that an employee has little or nothing to do during certain hours does not mean that he or she is not working.

The EAT identified the following as potentially relevant factors in deciding whether a person is working by being present:

  1. The employer's purpose in engaging the worker. A regulatory or contractual requirement for someone to be present, for example, might indicate that mere presence constitutes working.
  2. The extent to which the worker's activities are restricted by the requirement to be present and at the disposal of the employer. If the worker could be disciplined if they left the premises and did something else during the shift, this could indicate that the worker was working during the full duration of the shift.
  3. The degree of responsibility undertaken by the worker and the duties that might need to be performed during the shift.
  4. The immediacy of the requirement to provide services if something untoward occurs or an emergency arises. Is the worker the person who decides whether to intervene and does so when necessary, or is the worker woken as and when needed by another worker with immediate responsibility for intervening?

As regards the appeals in front of it, the EAT held:

  • The ET had carried out a multi-factorial evaluation and, on the basis of the facts found by the ET, it was amply entitled to conclude that the claimant in the first case was performing the role of a carer during the sleep-in shift, whether asleep or not. She was therefore entitled to the NMW for the full duration of the shift.
  • The ET in the second case had not applied the multi-factorial approach required. The case was therefore remitted to a fresh ET for a rehearing.
  • It was not necessary to address the ground of appeal in relation to the national minimum wage in respect of the third case because the employer's first and second grounds of appeal failed. However, had it been necessary to address this, the EAT was not confident that the ET had carried out the requisite multi-factorial evaluation and instead had appeared to proceed on the assumption that the requirement to be present during the sleep-in shift was determinative.

Comment

This issue has been the subject of much case law. The question is particularly significant in the care sector, where sleep-in duties commonly arise.

Given that failure to pay the NMW can lead to penalties and potential criminal sanctions, employers would welcome certainty in this area. However, it is understandable that the EAT only felt able to conclude that a multi-factorial approach is required and to provide some guidance about potentially relevant factors, leaving it to the ET in each case to reach a decision based on the individual facts.

What can be ascertained from the cases is that mere presence will not be decisive. Equally, the fact that the worker has little or nothing to do does not mean that they are not working.