After yet another recent case on working time, two of our partners, Tom Walker and Daff Richardson, go head to head this week on the vexed issue of whether or not employees should be paid to sleep. Please complete the survey and tell us what you think. The votes are also in from our last survey: it was union related so, judging by the number of votes cast, not something that affects as many recipients of these emails as the issues raised in other surveys. The percentages may therefore be swayed by the non-voters, which is perhaps entirely appropriate in a vote relating to union ballots. 68% of you thought balloting should be made easier but, perhaps more surprisingly, only 41% of you thought that thresholds should be increased to 50% of those entitled to vote rather than actually voting. Click here for the full results.
Paul Mander, Head of Employment
NO TO SLEEPING ON THE JOB BECAUSE...
It is not right that workers should be paid to sleep, and imposing this requirement will lead to the provision of inferior public services to those who are unlucky enough to need them in an emergency.
Workers who are required either to sleep on site in order to provide emergency assistance, or who have to sleep close to their base in order to react to call- outs at unsociable hours will often work in sectors such as care homes or for the emergency services. It goes without saying - although I will say it - that these are not cash-rich sectors and funding for posts generally is inevitably tight. A requirement that staff are paid to sleep, even if they’re paid only the National Minimum Wage, will impact on the viability of these services and in some cases lead to the provision of inferior public services. In particular, the quality of service provided to rural communities is likely to suffer.
Let’s look at the case of the paramedics which prompted this head-to-head. Their 'patch' was a large rural area - often mentioned in the travel bulletins because of road closures due to frequent snow. In order to service the outlying rural communities, the paramedics were required to sleep in accommodation within three miles of the ambulance station. Of course it would be wonderful if ambulances could be staffed with local people who in any event met this criterion: but of course in the real world this isn’t the case - hence the three -mile rule. When in their temporary accommodation, the paramedics could do what they wanted (within reason of course!) and were not prevented from sleeping or pursuing home-based hobbies. But they were on call, and couldn’t go home.
Permitting the workers to be on call from their real homes - when they would be paid for the time that they were called out, but not for the entirety of the on call period - won’t work where the need for the services to be undertaken is immediate and potentially critical and certainly wouldn’t work in a large remote rural area.
The upshot is that the services become more expensive to provide. With residential care, this is likely to increase the costs to residents, or to the tax- payer. With the emergency services, this could jeopardise the quality of service provided - or at least remove budget from some other deserving area in order to continue to provide the same level of service. Is it really reasonable for workers to be paid to rest when these are the consequences?
If this wasn’t complicated enough, categorising sleeping or leisure time as working time creates an administrative nightmare when it comes to calculating what rest periods, including compensatory rest, a worker is entitled to. The worker would effectively be entitled to rest breaks during or after their sleep: they are not just paid to sleep but given time off to do more sleeping in! And then there is calculating what hours are worked by a worker with two or more different jobs - not an uncommon phenomenon I suggest.
So - whilst being paid to sleep sounds like an ideal arrangement, the arguments against it must prevail.
YES TO SLEEPING ON THE JOB BECAUSE...
At times the encroachment of the American language into the UK workplace causes concerns. There has been a backlash against 'downsizing' and 'we are going to have to let you go'.
However one word brought over the Atlantic is spot on - 'compensation'. It sums up perfectly the work wage bargain. In return for the stress, effort and inconvenience that a job places on someone, they are compensated. It applies so much better than our clumsy British 'remuneration'.
On the basis that wages are compensation, an employee should receive pay for the disadvantages to their life imposed by the employer. Although it is tempting to say that there can be no real disadvantage to an employee who is allowed to sleep at the place of work, this overlooks the duties and pressures still placed on that person. Let’s have a quick look at some of the situations thrown up by the cases where workers have been paid for sleeping. They include a night-watchman who had to be available to respond to alarms, a supervisor at a hotel who had to be ready to respond to emergencies and a care home manager who had to be able to deal with problems as and when they arose. In all these situations the worker is undertaking responsibilities. They are not merely on call but are present on site.
They are never off duty, but remain liable to their employer, and very often care home residents, for their actions. It makes no difference that in certain cases the employee can live on site, they are at a place determined by the employer and must be available for the performance of services. They are not free to pursue their own activities and interests without interruption. Perhaps the situation was best summed up in the case of a manager of residential homes for the elderly who had a flat on the premises:
“She was on call for the whole 24 hours. She was required to be on site or within a three - minute radius - just far enough for her to take her dog for a walk. She could not socialise in the town, or visit her daughter or family. On the other hand, she could receive visitors, listen to music, eat, undertake other activities at home and, of course, sleep in her own bed.” MacCartney v Oversley House Management  ICR 510
In terms of health and safety law, in order for an employee to rest properly they must be able to relax away from the performance of their duties.
I am not arguing that workers who are allowed to sleep when at work should be paid the same rate as more active hours. In certain circumstances it could just be the National Minimum Wage that applies, but there must be some form of 'compensation' in return for remaining under the direction of their employer and subject to their duties. Indeed, as the Scottish Court of Session pointed out, if an employer does object to paying sleeping employees, then it should ensure that in these periods of work they don’t sleep but rather have other duties to carry out.
Of course there is a degree of self-interest in my argument. If people were not paid when sleeping, many lawyers could not justify their salary when nodding off in front of the latest TUPE case…