Paying workers for time spent asleep during a ‘sleep-in’ shift

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Should the National Minimum Wage be paid to workers for time spent asleep during a ‘sleep-in’ shift?

In several similar cases a particular question arose concerning the interpretation of the National Minimum Wage Act 1998 and the National Minimum Wage Regulations 1999 (SI 1999/584) and 2015 (SI 2016/621). The question was whether employees who slept-in in order to carry out duties if required engaged in “time work” for the full duration of the sleep-in shift or whether they were working for National Minimum Wage payment purposes only when they were awake to carry out any relevant duties.

In Royal Mencap Society v Tomlinson-Blake the employee was a care support worker caring for adults with autism and substantial learning difficulties. The employee’s shift pattern required her to sleep-in when she was paid a flat rate plus one hour’s pay. During the night shift the employee had no specific duties however, she was obliged to remain on the premises and be available if her assistance was needed and respond to any requests for help. The Employment Tribunal accepted the employee’s case that the whole sleep in shift should be treated as “time work” and therefore paid accordingly. The employer appealed but the Employment Appeal Tribunal held that the Employment Tribunal had adopted the correct approach and had been entitled to conclude that the employee was performing her role throughout the night, whether asleep or not, and the employer’s appeal was therefore dismissed.

Conversely, in Frudd and another v Partington Group Ltd the Employment Tribunal did not find the same result. The employees were employed as a receptionist/warden team at a caravan park. Under the terms of their contract they were required to ‘live-in’ on the premises and were provided with caravan accommodation on site by the employer. The employees were, at times, required to be on-call overnight to cover emergencies or which they were paid per call out. The ET held that when the employees were on call they were in fact “at home” within the meaning of reg.32(1) of the 1999 regulations and, therefore, only entitled to be paid the National Minimum Wage when actually working. The employees appealed and the Employment Appeal Tribunal held that it could not be concluded with confidence that the ET had applied the multi-factorial approach required. As such, its decision could not stand and the employee’s appeal was allowed.

Written by

Edward Aston
17th July 2017