Focus Care Agency v Roberts UKEAT/0143/16; Frudd and another v The Partington Group Ltd UKEAT/0244/16; Royal Mencap Society v Tomlinson-Blake UKEAT/0290/16, 21 April 2017

The Employment Appeal Tribunal (EAT) has concluded that a multifactorial approach is required when deciding whether employees who are on-call or carrying out sleep-in shifts are engaged in "time work" for the duration of the shift, or whether they are only entitled to be paid the National Minimum Wage (NMW) when they are awake and carrying out their relevant duties.

Hearing three joined appeals, the EAT emphasised that each case will depend on its own facts, with no single factor being determinative. A tribunal must consider whether an employee is working merely by being present, even if asleep at work, or whether they are "available and required to be available at or near work for the purposes of working" and thus subject to the special rules in regulation 32 of the National Minimum Wage Regulations 2015.

The EAT considered the following potentially relevant factors in determining whether an employee is working by being present:

  • the employer's particular purpose in engaging the worker: this could be relevant to the extent that it informs what the worker might be required to do;
  • the extent to which the worker's activities are restricted by the requirement to be present and at the disposal of the employer: is the worker required to remain on the premises or will be they be disciplined if they leave their post;
  • the degree of responsibility undertaken by the worker; and
  • the immediacy of the requirement to provide services if something untoward occurs or an emergency arises.

In Frudd, on-site wardens living at a caravan park were paid a flat-rate per call-out were held only to be doing time work when actually working.

In Focus, a care worker who had to work sleep-in shifts with a continuing obligation to look after patients on-call, was held to be performing "time work". Similarly, in Royal Mencap, two types of night worker, waking (working throughout the night) and sleep-in (on-site but only worked if required) were held to be entitled to NMW.

This decision follows a recent spate of case law in the area, and while it does not provide certainty, it is at least helpful to employers of on-call or sleep-in workers by establishing factors that must be taken into consideration when determining workers' remuneration. Pay practices that do not accurately reflect workers' shifts leave the employer open to the risk of penalties and criminal sanctions including fines, so employers must remain vigilant when assessing these matters.