Does time spent sleeping on a shift count towards ‘time work’ for National Minimum Wage purposes? The Employment Appeal Tribunal (EAT) recently addressed this in three combined cases and said that it was wrong to assume someone required to sleep at work will always be ‘working’. Rather, a 'multifactorial evaluation' is required on a case-by-case basis.

It is well established that 'work' is not to be assessed by any particular level of activity. For some workers, merely being present, even if entitled to sleep and rarely required to act, can be enough to attract the National Minimum Wage. Others who are obliged to be on-site and available when called upon might only qualify when they are awake and actually carrying out their duties. The distinction is notoriously difficult to identify and apply and very similar examples can fall on opposite sides of the line.

This latest decision confirms that the issue cannot be resolved by analogy or by any one defining aspect of the relationship. Rather, each case is likely to turn on its own particular facts, taking into account the following:

  • the employer’s purpose in engaging the worker; if it is to satisfy some regulatory or contractual requirement, this might (but will not necessarily) be indicative that presence alone will suffice;
  • the extent of the restriction on the worker’s activities; if there is the threat of discipline should they slip away, this too might imply they are working the whole time;
  • the degree of responsibility undertaken by the worker; the greater the personal responsibility, the more likely they are to be working throughout; and
  • the immediacy of the requirement to provide services; being the person on the ground to decide whether and how to act might suggest they are working more than if they are woken by someone else who has the immediate responsibility.

The EAT’s multifactorial approach has come at the expense of certainty. This may be useful to employers, as no one factor necessarily triggers the minimum wage, but employers should still be wary of the terms of sleep-in shifts. Ultimately, if presence is essential, it seems that the other indicators of ‘time work’ may well follow.