02 May 2017

In some areas, particularly the care sector, employees are often required, in addition to their daily hours of work, to sleepover at the employer’s premises and be available to deal with any emergencies that may arise. A vexed question for many years has been the issue of whether employees would be entitled to the national minimum wage for these hours in addition to the day shift.

Over the years there have been a number of reported cases, interpreting the provisions in the National Minimum Wage Regulations (“NMWR”) dealing with “time work”, resulting in a general approach to the effect that:

• The first question is to determine whether the employee is “working” during the night shift. It is necessary to accept that an employee may be working even if they sleep throughout the shift without interruption, if on a proper interpretation of the employment contract and the employee’s role, the requirement to be on site amounts to “work”
• It is only if the sleepover does not amount to work, that one can take account of the rules in the NMWR that relate to sleepovers. These provisions deal with time that is not working time, but the employee requires to be available for work. In such a case, time spent sleeping is expressly excluded from working time (the minimum wage only applies when the worker is actually awake and carrying out duties). However, that consideration does not arise if the sleepover is “work” rather than time “available for work”.

This is a very difficult approach for employers to manage, and the reported cases over the years have fallen on different sides of the line according to their facts. Clarity was sought in the recent Employment Appeal Tribunal case of Focus Care Agency v Roberts (and 2 other cases being heard at the same time). There was extensive discussion of the legal position, with the employers’ QC seeking to persuade the tribunal that time spent asleep should never attract the minimum wage. It was argued that since criminal sanctions can apply in this area, for failure to pay the minimum wage, there is a need for the law to be clear, so employers can be certain as to their duties.

Unfortunately, the EAT was unable to resolve the issue on the basis of a clear answer – they could not say that minimum wage either does, or does not, apply to sleepovers. It requires a “multifactorial” approach whereby a tribunal needs to look at all the facts and assess firstly whether the employee is actually working during a sleepover, simply by virtue of the requirement to be on the premises.

• An employee can be working merely by virtue of being present, even if there is nothing for them to do
• The fact that an employee is entitled to sleep does not mean they are not working
• Relevant factors to look at will include:
  o The employer’s purpose in assigning the sleepover to the worker. Is there a regulatory, statutory, or contractual requirement to have a worker on the premises?
  o To what extent are the employee’s activities restricted? Can he/she pop out for a while or would they be disciplined for that?
  o What responsibility does the employee have if something happens? Merely to call the emergency services or to take action personally?
  o To what extent does the employee have to use their skill, judgement, experience, expertise when called upon during the sleepover? Does the employee decide what intervention is required?

For those involved in sleepover arrangements, the uncertainty therefore continues, and it will be of little assistance to seek guidance from the decided cases, as they all turn on their own facts. Employers should take expert legal advice to fully assess the particular circumstances of their case and ensure compliance with the legislation.

Finally, it is important to note that (unhelpfully) the NMWR provisions on working time differ from those in the Working Time Regulations, in relation to weekly working hours, rest breaks, night work etc, with the result that particular time could be “working time” for one set of Regulations but not for the other.

Contact: Douglas Strang Senior Associate dst@bto.co.uk T. 0141 221 8012