Paid to sleep on the job?

It’s common in some sectors, such as health and emergency services, for workers to undertake ‘sleep-in’ shifts where they are present at work but on standby. A question arises in these situations – are these workers entitled to National Minimum Wage (NMW) for their entire shift or just those parts when they are working?

The Employment Appeal Tribunal (EAT) heard three appeals (the lead case being Focus Care Agency v Roberts) and concluded that a multifactorial assessment should be applied, with no single factor being determinative. The factors and weight to be given to them are a question of fact in each case, however, the EAT gave some guidance on approaching the issue.

It said that a realistic assessment must be made of all the circumstances in light of the employment contract and the context in which it is made and the fact that a worker had nothing to do at certain times did not mean that he or she was not working. Potentially relevant factors to consider include:

1. The employer’s purpose in engaging the worker. If there is a regulatory or contractual requirement to be present at all times this may indicate that they are working by just being present.
2. The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer. If they would be subjected to disciplinary action for leaving then this may indicate that they are working.
3. The degree of responsibility undertaken by the worker. Earlier case law suggests there’s a distinction between sleeping at the premises to call out the emergency services and carrying out more extensive duties such as care-giving.
4. The immediacy of the requirement to provide services if something untoward occurs or an emergency arises. A distinction could be drawn between those who have immediate responsibility to intervene and those who are woken by another worker with such responsibility.

This area is clearly very fact specific which can lead to inconsistencies in approach, however, this Judgment does go some way to provide clarity and guidance which will assist employers and courts in making these determinations.