Many people might think those who sleep on the job would not be entitled to be paid the National Minimum Wage (NMW) whilst their eyes are closed, but that is by no means always the case.  The Employment Appeal Tribunal (EAT) has given guidance on the issue in an important test case, particularly for the care sector.

The EAT was dealing with three appeals from Employment Tribunals concerning employees – two of them care workers – whose presence was required at night in order to respond to emergencies or otherwise perform their duties. The cases raised a common issue as to whether they were entitled to receive the NMW for the entirety of their shifts or only for those periods when they were awake.

In ruling on the matters, the EAT noted that a failure to pay the NMW when required can lead to penalties, and potentially criminal sanctions, against employers. The issue was of particular significance to the care sector, in which so-called ‘sleep-in’ shifts are common, and there was a pressing need for certainty in the law.

Recognising the difficulty of the issue, the EAT noted there is a clear dichotomy between those cases where an employee is working merely by being present at an employer’s premises, whether or not provided with sleeping accommodation, and those where an employee is provided with sleeping accommodation and is simply on-call.

There was no single key with which to unlock the issue as to whether the NMW was payable during hours spent asleep. The test was a multi-factorial one that required an assessment of relevant factors, including an employer’s purpose in engaging a particular worker, restrictions on a worker’s personal activities during hours spent on-call, the degree of responsibility undertaken and the immediacy of the requirement to provide services.

The EAT acknowledged that such an approach meant that no one factor could be treated as determinative and did not provide as much clarity as might be desired. However, there was no bright line test and each case was likely to turn on its own facts. One of the appeals, brought by a couple who worked as wardens of a caravan park, was allowed and that matter was remitted to a fresh Employment Tribunal for reconsideration. The other two appeals, each brought by an employer in the care sector, were dismissed.

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