The Employment Appeal Tribunal has heard appeals relating to 3 cases where the question was whether sleep-in workers who have to carry out duties if required, engage in ‘time work’ for the full duration of the sleep-in shift or whether they are working for national minimum wage payment purposes only when they are awake to carry out any relevant duties.
Sleep-in workers can be entitled to the NMW
The first case related to a carer who had nine hour sleep-in shifts. She was not allocated any specific tasks during these shifts and could sleep. However, there was a continuing obligation throughout the night during which she had sole responsibility for keeping a listening ear and using her professional judgment and detailed knowledge to decide when she should intervene.
A tribunal concluded that during the sleep-in shift the carer was performing time work. Factors that were relevant in this case included the employer’s legal obligation to have someone on the premises, the responsibility on the carer throughout the sleeping shift both to be and remain present throughout (whether asleep or not) and to keep a listening ear and exercise her professional judgment to determine whether or not to intervene, and if intervention was necessary to do so straightaway.
The Employment Appeal Tribunal dismissed a subsequent appeal saying that on the basis of the facts found by the tribunal, it was entitled to conclude that the carer was performing the role of a carer during the sleep-in shift, whether asleep or not.
Entitlement depends on the facts
The second case related to a couple who were employed by way of a joint appointment as a receptionist/ warden team. They lived on site at the caravan park where they worked and were required to remain on site when they were on call. They were only paid a call out payment whilst on call during the night.
A tribunal held that as they were at home they were only entitled to be paid the national minimum wage at times when they were actually working.
The Employment Appeal Tribunal allowed a subsequent appeal on the basis that the tribunal had identified no particular factors that emerged from its findings of fact as to the contract and the nature of the engagement the employees undertook that led to its conclusion. The tribunal did not expressly address the employer’s purpose in employing the employees and whether they were required to be present throughout the shift to fulfil an obligation of the employer to provide services to its customers on a 24/7 basis, and if so whether this was a relevant factor in the context of this case. Nor did it expressly address the extent of their responsibilities during the sleep-in shift, and if so how and to what extent this factor was weighed in the context of this case; or if not relevant, why that was so. The case has been remitted to a fresh tribunal for a rehearing.
Requirement to be present is not determinative
The third case related to two types of night worker. The waking night worker had the primary responsibility for the service user and was required to be awake at all times to support the service user and if necessary to perform other household duties. The waking night worker was paid at the contracted rate of pay. The sleep-in night worker was employed to assist with any emergency that might arise but was not required to be awake and was provided with facilities for sleeping. It was a requirement for the sleep-in worker to be on the premises at all times during the sleep-in shift. The sleep-in night worker was paid £25 for each nightshift.
The sleep-in night worker won a claim of unlawful deductions after bringing a claim for unfair dismissal. It was only at this time that he realised that he had not been paid in accordance with the terms of his contract (there was nothing in the contract that said that waking night workers and sleep-in night workers would be paid differently).
The tribunal dismissed the employer’s argument that he had waived his rights by failing to complain about the rate of pay until he brought his claim. The tribunal said that he was entitled to be paid the national minimum wage for the hours spent on the nightshift.
The Employment Appeal Tribunal dismissed a subsequent appeal saying that the tribunal had dealt adequately with the question of waiver and the findings and conclusions reached were both open to it on the facts and in law. However, the Employment Appeal Tribunal said it would not have upheld the tribunal’s conclusion on the national minimum wage as in the absence of any explanation for the tribunal’s conclusion it was far from confident that the tribunal had carried out the multifactorial evaluation necessary. An assumption that the requirement to be present throughout the sleep-in shift is not, it said, determinative.