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Sleeping on the Job - an Update for On-Call Night Workers

on Thursday, 12 November 2015.

The Employment Appeal Tribunal (EAT) held that an on-call night worker who lived at his work place was not entitled to National Minimum Wage throughout the night when he was asleep.

In Shannon v Rampersad (t/a Clifton House Residential Home), Mr Shannon worked as an 'on-call night care assistant' in a residential care home. He was provided with accommodation in the staff flat on the top floor of the home. He was required to be in the flat from 10pm to 7am but was able 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.

New owners took over the care home and relations between Mr Shannon and the new owners deteriorated. Mr Shannon was ultimately dismissed and then argued that he should have been paid National Minimum Wage (NMW) for the full overnight hours, including when he had been asleep.

The Employment Tribunal (ET) found that Mr Shannon fell within an exception under the NMW Regulations because his home was also his workplace and therefore only time when he was awake and working came within the scope of the NMW. As Mr Shannon was paid NMW for that time, his claim failed.

Mr Shannon appealed on the basis that his presence allowed the care home to fulfil its Care Quality Commission obligation to have 'appropriate staffing levels' in place, i.e. one worker who was awake and working and one worker that was asleep but on call.

The EAT dismissed the appeal.

The EAT differentiated this situation to those where the workers were doing their job by simply being present (e.g. night watchmen and telephone operators). Here, mere presence did not in itself entitle a worker to the NMW for the whole shift. The fact that Mr Shannon helped satisfy an obligation did not prevent the exception under the NMW Regulations applying.

The ET was entitled to take into account that there was another night worker on duty and in practice Mr Shannon was rarely called upon to work during the night.

Best Practice

It should be noted that this is a particularly fact sensitive area of law and each case will be decided on its own facts. In this case, the fact that Mr Shannon lived in the on-site flat, was only required on rare occasions to respond to requests and that there was another night worker on duty, were key considerations to the EAT's decision.

Whilst this decision shows that tribunals can sometimes be unpredictable, this is a positive outcome for schools. Boarding schools can rest assured that tribunals will not automatically require NMW to be paid for the entirety of a night shift where the worker is able to sleep throughout, even if that workers' presence is required due to sector specific obligations.

For example, whilst there is no legal requirement for staff numbers, boarding schools must follow the Department for Education's Boarding School National Minimum Standard (NMS) and be 'adequately staffed'. The NMS also requires at least one staff member sleeping in each boarding house to be responsible for the boarders in the house. These duties should not prevent a tribunal from applying the NMW exception.

Instead, whether the worker's hours are within the scope of the NMW will depend on various external factors including whether the workplace is also the worker's home and what the worker's responsibilities were in practice. In the meantime, we wait to see if further decisions will clarify the position for on-call night workers.

For more information, please contact Alice Reeve in our Independent Schools team on 0117 314 5383.

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