The Courts have recently considered whether workers are entitled to the National Minimum Wage whilst on-call or sleeping at work.

It was decided that there could be no clear answer and each case must be judged on four common factors to decide if someone is working. The weight each factor carries (if any) will vary according to the facts.

In short, the factors are:

  1. whether there are any legal requirements on the employer to have someone present
  2. whether the employee is particularly restricted when on call or at work (or if they have freedom to go off-site, for example)
  3. the degree of responsibility undertaken by the worker
  4. the immediacy of the need for the worker in an emergency

The decision was a crucial one, not least because employers can be subject to criminal sanctions if they get it wrong. Employers will, therefore, need to seek advice on analysing the four factors to ensure they are making every effort to reach the correct conclusion.