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Sleeping on the job: Is there any clarity about pay?

Posted by Lesley Furber on Sep 22nd, 2016 | Employment law

Sleeping on the job: Is there any clarity about pay? Image of a sleeping dog

To examine the latest position on whether you should be paid for sleeping at work, we’ll be looking at:

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In April 2015, the government enacted new National Minimum Wage (NMW) regulations that repealed and re-enacted all the law relating to the NMW. There were not any substantive changes to the regulations, but the government issued guidance to give clarification on issues such as the rules on sleeping time, travel time, and the definition of rest breaks. Find out more about guidance for employers and employees.

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The guidance states employers must look at whether a worker is still subject to certain work-related responsibilities while asleep. A worker who is ‘working’, even though they’re asleep, is entitled to the NMW for the entire time they’re at work. Someone can be ‘working’ whilst asleep if, for example, there’s a statutory requirement for them to be present at work and would face disciplinary action if they left the workplace (e.g. a person working in a care home where there must be someone on the premises at all times).

Where a worker is only available for work and is allowed to sleep (and suitable sleeping facilities are provided at the workplace), they won’t be ‘working’ and the NMW won’t be payable.

They must be paid the NMW when they’re actually awake for the purposes of working, e.g. someone who lives in a flat above a pub who’s required to sleep there but can come and go at night as they please. There are no specific responsibilities during the night, apart from the fact the premises are occupied.

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Generally, a sleep-in is a night shift where you sleep at the workplace, so you’re available to support people during the night. A waking night shift means you must stay there overnight and work as you would during the day, so there’s usually no ability to sleep.

There’s an exception which entitles a worker to the NMW. A worker who lives in their employer’s home, sharing in the household chores and leisure activities, may not be entitled to the NMW if they’re living with and being treated as part of the family, and not paying the employer for meals or accommodation. It’s debatable whether carers would fall into this category.

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In October 2015 – Shannon v Rampersad & Rampersad t/a Clifton House Residential Home – Shannon worked on-call in a care home at night and was allowed to sleep during those hours (responding to any requests for assistance by a night care worker on duty, which was very rare), and received free accommodation in a studio flat within the care home. He was paid the NMW for the times when he did work.

The EAT found that, although he was required to be on site and was allowed to sleep in his own studio, he rarely had to respond to calls to work as there was an ‘on duty night worker’ present. The EAT held that the hours in which he was awake for the purposes of working counted as paid working hours.

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In July 2018 the Court of Appeal gave their verdict on the ‘consolidated’ appeal to clarify the issues in the cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad.

They found that staff who are contractually obliged to perform sleep-in shifts at (or near) their place of work are only entitled to the NMW/NLW for the hours when they are awake for the purposes of working. They’re not entitled to NMW for time spent asleep during these shifts.

This decision covers ‘time’ workers (the Mencap cases) and ‘salaried’ workers (the Shannon case).

The Court of Appeal considered that in this type of sleep-in shift, the worker is actually expected to sleep. They’re only ‘available’ for work, and therefore not entitled to be paid the NMW for the entire shift.

In the Mencap case, Ms Tomlinson-Blake slept at a service users home in order to be available to assist the user if an incident occurred. She was paid a flat shift rate of £29.05 for the nine hours she was on shift at night.

When she worked during the day, she was paid £6.70 per hour. During the night shifts, she had her own bedroom and could sleep or use the time as she wished, as long as she didn’t leave the premises. She provided support to the user on approximately six occasions in a 16 month period. In the original 2017 EAT decision, the EAT decided that “a multifactorial evaluation is required. No single factor is determinative and the relevance and weight of particular factors will vary with, and depend on, the context and circumstances of the particular case”.

They said the approach to use (for time and salaried workers) is:

  • determine if the individual is ‘working’ by being present at the workplace, even in periods where they are permitted to sleep. Whether someone is ‘working’ won’t depend on there being a particular level of activity (they may have nothing to do or not very much). An individual can be ‘working’ by being present as they’d be required to deal with anything that arises (e.g. a client becomes unwell or distressed), even if nothing happens
  • Consider the employer’s purpose in engaging the worker – is there a regulatory or contractual requirement to have a worker there during that particular period of time (if there is, they’re likely to be ‘working’ throughout the shift)
  • Consider if the workers activities are restricted by the requirement to be present at the premises and available to the employer during these hours (e.g. can they leave the premises for any reason during their shift or would they be disciplined if they did this?)
  • Consider the degree of the responsibility the worker has. Where there’s limited responsibility, it’s likely they’re not working (e.g. sleeping at the premises so they could call out the emergency services if there was a fire or robbery for example). However, if a carer has duties that have to be performed during the shift, this is likely to be ‘working’
  • Consider how urgent the need for the worker to respond to incidents is. Is the worker themselves the person who intervenes in the incident (likely to be not ‘working’), or are they woken up by another worker who has immediate responsibility for intervening (who is likely to be ‘working’)?

None of these factors carried more importance than the others. The EAT applied this guidance to the Mencap case and held that the care worker, who provided care for two vulnerable adults who had local authority assessed care plans that required 24-hour support, was ‘working’ for her whole shift as the employer legally needed someone on the premises and the worker was required to use her professional judgement about when to intervene and respond to situations with the clients.

The Court of Appeal’s decision is going to be appealed by UNISON to the Supreme Court. In February 2020, the Supreme Court heard the appeal and, in January 2021, we’re still awaiting the verdict!

Importantly, the COA’s judgement means that a raft of previous cases (including Whittlestone v BJP Home Support Ltd 2013) have all been wrongly decided!

So, going forward, employers need to ask:

  • Is the worker ‘working’ or ‘available’ for work?
  • Is the worker ‘expected’ or permitted to sleep? Where a worker is ‘expected’ to sleep this falls within the Mencap decision. But where workers have specific tasks to fulfil but are otherwise permitted to sleep, this means they should be paid throughout the shift (in line with British Nursing Association v Inland Revenue in 2002).

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In 2012, an important case at the Employment Appeals Tribunal confirmed what previous case law had described: during a sleeping night-shift, only the hours spent awake and working will count towards a workers National Minimum Wage.

This case reinforced the key distinction between a job where a worker’s core duties require them to work during the night, and a job where a worker is required to be ‘on call’ (in addition to their core working hours).

In the first situation (where a worker’s core duties require them to work at night), the whole period will count as actual working time for the purposes of the National Minimum Wage. This is true even if their tasks only arise occasionally and they sleep in the time between those tasks, like a night watchman or a nurse dealing with telephone queries.

In the last situation, where a worker is ‘on call’ (and their main job isn’t carried out at the same time as the ‘on call’ period) and they’re provided with suitable sleeping facilities, only the hours when the employee is awake for the purpose of working will be counted as working time.

In this case, the workers were sheltered housing wardens working 36 hours per week from 8.30am – 5.30pm, who were expected to be ‘on call’ outside of their normal working hours. They were provided with accommodation that was free of rent and council tax, and agreed to be in residence for four nights a week in case of emergencies.

The elderly residents had an alarm system in their houses which connected to the workers’ accommodation and a central alarm system in a Council building. The workers would hand the alarm connection over to the Council at about 5pm, but had to take it back by midnight four nights a week (which took them 10-15 minutes).

The claimants were ‘salaried hours’ workers, which means they were paid an annual salary for a fixed number of hours in regular instalments.

They argued they weren’t being paid the NMW for the time spent taking back the alarm connection, or the time between midnight and 8.30am on the four nights of the week the alarm was connected to their house, which they believed constituted ‘salaried hours’ work. There were 10 claimants, and they could claim time off in lieu (TOIL) or overtime payments if called out during the night – six had never claimed any payments or TOIL, and the others had only done so occasionally.

The original employment tribunal agreed with the claimants and decided they were ‘at work’ rather than ‘on call’.

The Council appealed against this decision. The Employment Appeal Tribunal (EAT) agreed with the Council and reversed the tribunal’s original decision.

The EAT said it was not necessary to determine whether the 10-15 minutes involved in taking back the alarm connection constituted salaried hours because there was no NMW shortfall for those short periods.

The EAT also said that the original tribunal had failed to recognise the distinction between ‘working’ and ‘on call’ in relation to workers who sleep at or near their place of work. These workers were deemed ‘on call’ and not entitled to the NMW for periods they didn’t work.

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In 2016, 17 care workers employed by Sevacare, backed by UNISON, lodged a claim at the Employment Tribunal about not being paid the NMW when they were sleeping (and also while travelling to jobs). Sevacare provides care and support to nearly 10,000 people across a number of local authorities in England. Payslips show that some of the carers were paid only £3.27 when working as live-in carers.

UNISON say the carers were on duty 24 hours a day, seven days a week, couldn’t leave the house and were employed on zero-hours contracts. They slept in a bed in the same room as the woman they were caring for.

Sevacare disputed that the workers were working for 24 hours per day, claiming they were employed on a ‘daily hours average’ agreement and were paid for 10 hours work each day. The care workers with UNISON are taking Sevacare and Haringey Council to tribunal. Haringey Council ended its relationship with Sevacare after “serious concerns” were raised by a Channel 4 Dispatches programme in April 2016 that raised questions of Sevacares’ employment practices.

We await the outcome of this tribunal.

Please note: The law relating to whether the NMW needs to be paid during ‘sleeping’ time whilst on-call and not working is complex and case law is changing constantly. Therefore, please do not rely on this advice for your individual circumstances; it is guidance only and cannot be taken as an authoritative interpretation of the law.

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