In these three conjoined cases, the Employment Appeal Tribunal (EAT) considered whether night-shift workers who slept on the employer’s premises were entitled to be paid the national minimum wage.
Focus Care Agency Ltd v Roberts and conjoined cases, EAT
The EAT heard three conjoined cases, to consider whether ‘sleep-in’ time counted as ‘time work’ for the purposes of the NMW, for the duration of the shift or only when the workers in question were awake and carrying out duties.
Two of the cases concerned care workers required to ‘sleep in’ on the premises, and the third case concerned on-site wardens at a caravan park.
The EAT held that a multi-factorial approach is required to determine whether a worker is working merely by being present at the workplace (even if asleep).
There are four potentially relevant factors to be considered:
- The employer’s particular purpose in engaging the worker. If there is, for example, a regulatory requirement to have someone present at all times, it might indicate that the worker is working simply by being present.
- The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer. Could, for example, the worker be disciplined if they left their post during the shift?
- The degree of responsibility undertaken by the worker and the types of activities that they might be called upon to perform.
- The immediacy of the requirement to provide services if something untoward occurs or an emergency arises.
The EAT emphasised that each case is likely to turn on its own facts. In one of the cases, a care worker was engaged to support vulnerable adults. Whilst she was not allocated specific tasks during her shift, she would be disciplined for leaving her post and putting her employer in breach of its legal obligations. The EAT upheld the tribunal’s conclusion in this case (and in the lead case, also brought by a care worker) that the worker was performing time work throughout their shift.
Employers of night-shift workers who ‘sleep-in’ should review their existing pay arrangements, applying the factors identified by the EAT to establish whether the workers are engaged in ‘time work’ during their whole shift in order to ensure that they are being paid in accordance with the NMW.