Sarah Scholfield, employment solicitor at Glaisyers Solicitors LLP, takes a look at the recent EAT cases about night shift workers and explains what employers need to know.
Under the National Minimum Wage Regulations (NMW), employees are entitled to be paid the NMW for any time spent working. In most jobs, it is easy to identify any periods of work for which individuals ought to be paid at least the NMW. In some roles however, this issue is far from straight forward and particular difficulties have arisen in relation to workers who are required to complete “sleep-in” shifts, whereby they are on-call for the duration of the shift and sleep either on site or at a place close to work in order to carry out duties if called upon.
Sleep-in at shifts generally fall within one of the following categories:
- The worker is on-call away from home with no sleeping facilities provided by the employer;
- The worker is on-call at or near work with sleeping facilities;
- The worker is on-call at home.
The question of whether these workers should be paid the NMW depends on whether the worker is actually working or simply available for work. If they are working all the time spent on the sleep-in shift must be counted in any NMW calculation. If they are simply available for work they are only entitled to the NMW for any time spent working during the shift. Whilst this may seem straightforward, the courts and tribunals have struggled to clearly identify what constitutes work during a sleep-in shift which has led to a great deal of uncertainty in this area.
The Employment Appeals Tribunal (EAT) has recently had to grapple with the issue of sleep-in shifts in three joined appeals which considered whether night shift workers who complete sleep in shifts are entitled to the NMW for their whole shift, or just the time they spend awake carrying out duties.
In the case of Focus Care Agency v Roberts, Mr Roberts was employed by Focus Care Agency to carry out “sleep-in” night shifts. During these, he was required to assist with any emergency that might arise but was not required to be awake. He was provided with sleeping facilities and received an allowance of £25 per night for each sleep-in shift completed.
Following his dismissal Mr Roberts claimed that the whole of the time he spent on sleep-in shifts was work time and therefore he had been entitled to the national minimum wage for these shifts. He issued proceedings to recover the shortfall in his pay by way of an unlawful deduction from wages claim.
Mrs Tomlinson-Blake was employed by Mencap as a care support worker (Royal Mencap Society v Tomlinson-Blake). She was required to work dayshifts, morning shifts and sleep-in shifts. Dayshifts and morning shifts were part of her salaried hours and she was paid accordingly. She received a flat rate of £22.35 together with one hour’s pay for any sleep-in shifts. When on a sleep-in shift she had to remain at the property to keep an ‘ear out’ in case her support was needed. She had her own bedroom and was expected to intervene to deal with incidents that required her assistance or to respond to requests for help. Over the preceding 16 month period she had only been called upon to help on six occasions.
In the case of Mr & Mrs Frudd v The Partington Group Limited, the Frudds were jointly appointed as receptionist and warden at a caravan park. They were required to reside on the premises in a caravan and were “on call” overnight to respond to any emergencies or enquiries. When they were on call they had a mobile phone and pager to receive calls. If they were called out they received a payment of £8.50.
The EAT confirmed that both Mr Roberts and Mrs Tomlinson-Blake were performing time work throughout their sleep-in shifts and therefore should have received the NMW for the whole of each shift. However, they did not accept Mr and Mrs Frudd’s claim and made it clear that they were only doing time work while actually working as they were at home at all other times when on call.
No one-size-fits-all answer
The judge in these cases made it clear that it was not possible to give a straight ‘yes’ or ‘no’ answer to the question of whether sleep-in shifts amount to time work. Instead he confirmed that a multi-factorial approach is required and that every case must be considered on its own facts. He went on to suggest some potentially relevant factors to consider:
- The employer’s particular purpose in engaging the worker e.g. if the employer is subject to a regulatory requirement to have someone present.
- The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer e.g. would the worker be disciplined for leaving the premises.
- The degree of responsibility undertaken by the worker.
- The immediacy of the requirement to provide services if something untoward occurs or an emergency arises.
With the continued lack of clarity in the law and frequent difficulty in establishing whether someone is working or merely available for work, it is highly likely this will be an area of further litigation.
Care providers must review working practices to make sure they don’t fall foul of the law
Employers in the care sector reliant on public-sector contracts already face ever-tightening budgets and the prospect of paying sleep-in workers NMW for the entire “sleep-in” period may leave some in financial difficulties. That said, employers who fail to do so can face not only criminal sanctions and tribunal litigation from disgruntled ex- and current workers but also serious reputational damage.
Given the recent announcement of an increase in the maximum penalty for failing to pay the NMW from £5,000 to an expected £20,000, and the new policy of naming and shaming businesses that breach their obligations, it is therefore more important than ever for care providers to review and possibly change working practices to make sure they don’t fall foul of the law.