Sleeping on the Job - Working Time for Night-Shift Workers

Regular readers of our blogs may remember our report on the Employment Appeal Tribunal's (EAT) decision of Shannon v Rampersad (t/a Clifton House Residential Home). In that case, 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 but was permitted to sleep during these hours. He had to respond to any calls for assistance from the night care worker on duty at the time but was very rarely called upon. The EAT upheld the Employment Tribunal's (ET) decision that he was only entitled to the minimum wage for hours when he was awake and working as opposed to for the entire shift.

The EAT has recently had to grapple with this issue once more in three conjoined appeals, Royal Mencap Society v Mrs Tomlinson-Blake (the Mencap case), Mr and Mrs Frudd v the Partington Group Limited (the Partington case) and Focus Care Agency Ltd v Mr Brian Roberts (the Focus Care case). The range of facts in these cases illustrates the difficulties that can be faced by employers, employment lawyers and tribunals in identifying when 'sleep in' night shifts attract the minimum wage.

Background

Mencap

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).

Partington

In the Partington case, the claimants were employed by way of a joint appointment as a receptionist/warden team in a caravan park. They were required to live in the park in a caravan provided by Partington. They had to participate in an on call rota and, when on duty, were required to remain on the park to respond to any emergencies or enquiries, and keep with them a pager and mobile phone for this purpose.

Focus

In the Focus case, the Claimant was a carer providing supported living services. In order to meet its Care Quality Commission regulatory obligations to deploy sufficient suitably qualified, competent and experienced staff, Focus provided two members of staff to look after a service user during the day and two during the night. During the nightshift, there was a 'waking night worker', who had the primary responsibility for the service user and was required to be awake at all times, and a 'sleep-in night worker', who was to assist with any emergency that might arise but was not required to be awake and was provided with facilities for sleeping. Although the written contract did not specify that the sleep-in night worker would be on the service user’s premises at all times. In practice, the parties understood that there was such a requirement.

In the Focus and Mencap cases, the ETs held that these were the kind of arrangements where the claimants were entitled to be paid the minimum wage for their entire night shift, whether asleep or not. In the Partington case, the ET held that they were not, but should only be paid for the hours they were actually working.

After reviewing the relevant legal principles, the EAT said that this is a particularly fact-sensitive area and 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 whilst using sleeping accommodation.

The EAT said that the factors which should be considered may include:

• the employer's particular purpose in engaging the worker (so for example, where a regulatory requirement is being met by the worker's presence, this may be a factor pointing towards them working merely by being present)

• the extent to which the worker's activities are restricted by the requirement to be present and at the disposal of the employer

• the degree of responsibility undertaken by the worker and the types of activities that they may be called upon to perform and

• the immediacy of the requirement to provide services if something untoward occurs or an emergency arises

Applying those principles, the EAT:

• upheld the Tribunal's decision in the Mencap case, relying in particular on the regulatory need for the claimant to be on site and her responsibilities whilst there

• upheld the claimant's appeal in the Partington case and remitted it back for a new hearing because that ET had failed to make the necessary evidential findings regarding the extent of the claimants’ obligation to remain at the caravan site throughout the shift and

• in the Focus case, held that the appeal failed due elements that related to the proper construction of the contract, so it did not have to determine the minimum wage point. However, it did comment that if it had needed to address that point, it would have upheld the appeal on the grounds that the ET did not carry out the necessary multi-factorial assessment

Best Practice

The EAT's decisions show just how difficult it can be to identify whether a night shift with sleeping time can attract national minimum wage for the whole shift or not, with 2 out of the 3 Employment Tribunal Judges not making the right decision on that point. The key point for employers who have such shift arrangements to bear in mind is that each case needs to be analysed using the factors the EAT has identified, so broad policy generalisations should be avoided.

For further information, please contact Bob Fahy in our Employment team on 01923 919 302.