When Does Sleep Count as Work?

The Law

This is a question which has troubled the courts over the last few years. Recent case law had found that many staff who were required to be present at their place of work (even if asleep) were entitled to receive the national minimum wage for all those hours.

This case has reverted to the more straightforward reading of the national minimum legislation and confirmed that in most cases it is only time that is spent awake and responding to issues that counts as working time for national minimum wage purposes.

In general terms, to comply with the national minimum wage, when taking into account all pay received in a reference period divided by the hours worked, this must be greater than the national minimum wage. A key aspect is assessing what hours count for the purpose of this calculation.

The national minimum wage regulations provide that in addition to hours worked, workers: "are treated as doing work if they are available (and are required to be available) at or near a place of work for the purpose of working".

This is subject to exceptions where "that worker is at home; and/or hours when a worker is available only includes hours when the worker is awake for the purposes of working, even if a worker is required to sleep at or near a place of work and the employer provides suitable facilities for sleeping".

The Facts

Mr Shannon, an 'on call night care assistant', was provided with a flat at the care home where he worked and was required to be in the flat from 10pm to 7am to meet a regulatory requirement. He was permitted to sleep during these hours. He was there to support a night care worker who was on duty and awake during this period. Mr Shannon had to respond to any calls for assistance from the night care worker on duty at the time but was very rarely called upon.

In the Mencap case, the claimant was a domiciliary care support worker who worked at the private homes of two vulnerable adults, where she had her own bedroom and access to a shared bathroom. The claimant's shift rota included both day shifts and sleep-in night shifts. During the night shift, no specific tasks were allocated to her, but she had to remain at the house and intervene where necessary and respond to requests for help and emergencies. The need to intervene was real but infrequent (6 occasions over the 16 months before the ET hearing).

The Decision

The Employment Appeal Tribunal (EAT) in the Mencap case had found that it was critical to determine whether an individual required to be at their place of work was working or merely available to work.

It concluded that a 'multi-factorial' approach must be taken to determine whether, for minimum wage purposes, someone is working simply by being at their employer's premises or is merely available to work, whilst sleeping on site.

The EAT said that the factors which should be considered which would lead to a conclusion that an individual was working may include; where a regulatory requirement was being met by the worker's presence, the extent their activities were restricted by the requirement to be at their workplace, the degree of responsibility and type of activities they may be called to perform, and the immediacy of the requirement to respond.

The Court of Appeal has now rejected this position. The Court confirmed that it is still important to consider whether an individual is working or merely available to work. It is only if they fall into the latter category that it is possible to make use of the exemptions. However, the judge found that most staff sleeping on premises will be considered to be available to work, and only hours spent awake and responding to calls will count for the purposes of the national minimum wage. This is irrespective of if they are there to meet regulatory requirements.

Best Practice

This decision will be welcomed by employers employing staff who sleep at their workplace as part of their role. As a starting point it will still be important to identify those staff who are working when required to be present on site, as distinct from merely available to work.

• Staff who are working either at home or at their workplace (even if work is intermittent with downtime) - all time will count for NMW.
• Staff who are available to work at home - no time at home will count for NMW.
• Staff who are available to work at their workplace with arrangements to sleep - only time when awake and responding will count for NMW.

In order to ensure compliance with these rules, employers should arrange for a record to be kept of hours worked over night and ensure either that staff are paid for these hours, or that their total remuneration is greater than the national minimum wage when these hours are taken into account.

It is also important to note that whilst this is a helpful decision in relation to claims for pay under the national minimum wage, it does not affect the Working Time Regulations which are based on different definitions.

For further information please contact Alice Reeve in our Employment Law team on  0117 314 5383.