The Employment Appeal Tribunal (EAT) has made things a bit easier for employers of night workers who are able to sleep on the premises.

The principle of the National Minimum Wage is that if someone is required to be at their place of work, it is working time and they should be paid. But there is an exception for employees who are given a place to sleep at the workplace. They need not be paid if sleeping. Tribunals have traditionally been very reluctant to apply this exception. They have used health and safety to argue that no one can truly switch off when at work and all time at the work place should be paid.

Further, employees at care homes and other workplaces often fulfil a statutory duty by being present and on call even if asleep. As such, they are working. In a 2013 case, the EAT summed this up by saying the employee “remains shackled by his employer to a particular location and is subject whilst there to providing an immediate response to his employer’s bidding.”

In last month’s case of Shannon v Rampersad, the EAT has retreated from this hard line position. It considered a case at a care home where a worker was required to be on site and on call but was allowed to sleep in a studio which was his home. He was required to respond to calls only on rare occasions and there was also an ‘on duty night worker’ present. The EAT held that only those times when he was awake for the purpose of working counted as paid working hours. The EAT was not persuaded by previous rulings that a sleeping person could be working by their mere presence fulfilling a statutory duty.