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

Posted on Sep 22nd, 2016 | Employment law

Care workers are in the news again, with Unison backing 17 carers who worked for Sevacare in Haringey, North London, in a forthcoming Employment Tribunal claim about underpayment of the National Minimum Wage.

To examine the latest position on whether you should be paid for sleeping at work, we’ll look at the most important, and recent, tribunal cases.

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

City of Edinburgh Council v Lauder and others (2012)

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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, for example a night watchman or a nurse dealing with telephone queries.

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

In this case, the workers were sheltered housing wardens working 36 hours per week from 8.30am – 5.30pm and 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 resident at their accommodation for four nights a week in case of emergencies.

The elderly people in the accommodation had an alarm system in their houses which connected with 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 the alarm connection back by midnight on 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 installments.

The claimants said they were not being paid the NMW for the time spent in taking back the alarm connection and the time between midnight and 8.30am on the four nights of the week when the alarm was connected to their house, which they believed was all ‘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 the claimants 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, and these workers were ‘on call’ and not entitled to the NMW for periods when they did no work.

Being paid the National Minimum Wage to ‘sleep over’

At the end of 2013, an important case went to the EAT – Whittlestone v BJP Home Support Ltd – that confirmed employees who are engaged on ‘time work’, and who are required to ‘sleep over’ at a specified location as part of their work, are entitled to be paid the NMW for all hours they have slept-over. This is regardless of whether their sleep is interrupted by work or not.

Time Workers are defined by NMW legislation as those who are paid an hourly rate in relation to the time they work and it is likely their hours may vary. For full details of the NMW, read our related post.

Mrs Whittlestone was employed by BJP to provide care services – she was paid at the rate of £6.35 for her ‘standard’ shifts and was also obliged to do on-call shift ‘sleepovers’ (from 11pm to 7am) for which she was paid a £40 allowance. She was provided with a bed and permitted to sleep if her services were not needed by the service user.

The EAT had to consider whether such sleep-over work was ‘time work’ for the purposes of the NMW Regulations.

They decided Mrs Whittlestone was employed on ‘time work’ because she was paid according to the hours she worked. The Judge considered that ‘sleepovers’ were working hours and therefore ‘time work’ because she was required to be present at a specified place as part of her work for these hours and her failure to be available and/or work during such a shift could have resulted in disciplinary action. This was irrespective of whether she had to do any work when she was there. There was no evidence she had ever woken to provide care, but the Judge said the level of her activity was not relevant.

The wording of the contract is important here, and the judgement is an indication that each case will be decided depending on its own factors. What was important in this case was whether Mrs Whittlestone was required to be on the premises for a stated purpose and whether she could have been disciplined had she left the premises during the night. It was her job to be at the service user’s home (under her contract of employment) and her activities during sleepover hours were limited by the fact she needed to be on the premises, so the Judge said she was entitled to be paid the NMW for the duration of the shift.

This decision was reinforced in a June 2014 case – Esparon v Slavikovksa – where the key factor was that her employers were required to have a suitable person on the premises overnight to comply with care-home regulations.

However, in October 2015 – Shannon v Rampersad & Rampersad t/a Clifton House Residential Home – Shannon worked on-call in a care home at night, but 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 in 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 a studio that was his home, he rarely had to respond to calls to work as there was an ‘on duty night worker’ present. The EAT held that only at those time when he was awake for the purposes of working counted as paid working hours

Sevacare case

In the new Sevacare case, 17 care workers, backed by UNISON, have lodged a case at the Employment Tribunal to complain 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, 7 days a week, could not 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 disputes that the workers were working for 24 hours per day, saying they were employed on a ‘daily hours average’ agreement, being 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 earlier this year after “serious concerns”, which followed a Channel 4 Dispatches programme in April raising concerns about Sevacares’ employment practices.

We await the outcome of this.

Government guidelines on sleeping at work

In April 2015, the Government enacted new 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.

Sleeping between duties

The guidance states employers must look at whether a worker is still subject to certain work-related responsibilities whilst asleep. A worker who is ‘working’, even though they are asleep, is entitled to the NMW for the entire time they are at work. Someone can be ‘working’ whilst asleep if, for example, there is a statutory requirement for them to be present at work and they 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).

Where a worker is only available for work and is allowed to sleep (and suitable sleeping facilities are provided at the workplace), they will not be ‘working’ and the NMW is not payable. They must be paid the NMW when they are actually awake for the purposes of working. For example, someone who lives in a flat above a pub who is 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 is occupied, so they will not be paid the NMW unless they do work.

Sleep-in and waking night shifts

Generally, a sleep-in is a night shift where you sleep at the workplace, so you are 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 is usually no ability to sleep.

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

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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