This is a question which is critical to many schools, particularly boarding schools and those with nursing staff and residential caretakers, but is proving far from straightforward to answer.
The national minimum wage regulations provide that:
"Where the worker is not actually working, they 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 doing such work, subject to the following:
where the worker's home is at or near the place of work, time the worker is entitled to spend at home is not treated as working time;
where the worker sleeps by arrangement at or near a place of work and is provided with suitable facilities for sleeping, time during the hours they are permitted to use those facilities for the purpose of sleeping shall only be treated as working time when the worker is awake for the purpose of working."
Many employers rely on these provisions to mean that only the time that individuals are up and responding to issues counts as working time for the purpose of the national minimum wage. However, this is only the case if the time the individuals can spend at home or sleeping is not otherwise deemed to be 'working'. The dividing line between 'working' and being 'available to work' has been considered by a number of recent cases.
In Shannon v Rampersad (t/a Clifton House Residential Home), Mr Shannon, an 'on call night care assistant' was provided with a flat at the care home where he worked. He was required to be in the flat from 10pm to 7am but 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. The Employment Appeal Tribunal found that he was only entitled to the minimum wage for the hours when he was awake and working as opposed to the entire shift.
The EAT has recently had to grapple with this issue once more in three conjoined appeals.
In Royal Mencap Society v Mrs Tomlinson-Blake, 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).
In Mr and Mrs Frudd v the Partington Group Limited, 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.
In Focus Care Agency Ltd v Mr Brian Roberts, 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.
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.
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 factors which should be considered 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
the immediacy of the requirement to provide services if something untoward occurs or an emergency arises
Applying those principles, the EAT:
In the Mencap case upheld the Tribunal's decision that the claimant was entitled to be paid the national minimum wage for the entire shift, relying in particular on the regulatory need for the claimant to be on site and her responsibilities whilst there.
In the Partington case upheld the claimant's appeal against the Tribunal's decision that they should only be paid for hours actually working and remitted it back to a new Tribunal hearing to consider the extent that the claimants' were obliged to remain at the caravan site throughout the shift.
In the Focus case the Tribunal found that the claimant should have been paid for the entire night-shift and not just the time spent actually working. The EAT did not get to specifically address this point, but noted that it would have been necessary for the Tribunal to carry out the necessary multi-factorial assessment to reach a conclusion.
These 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. The key point for schools who have such shift arrangements to bear in mind is that each case needs to be analysed using the factors the EAT has identified.
There is no doubt that the emphasis given to the regulatory need for a worker to be on site is unlikely to be helpful for boarding schools, where the Department for Education's Boarding School National Minimum Standard requires schools to be "adequately staffed" and to have at least one staff member sleeping in each boarding house to be responsible for the boarders in the house.
Where an employee is present on site for regulatory purposes, unable to leave site, and would be subject to disciplinary action if there were to do so, then there is a strong likelihood that based on the multi-factorial test, all the time will be deemed to be working time for the purpose of assessing entitlement to the national minimum wage.
Accordingly, where these provisions do not apply and individuals are residential for contingency or mutual convenience then this should be clear, so as to avoid the whole time counting for minimum wage purposes.