Case law: Employees with no specific duties are not working while asleep, when calculating whether minimum wage being paid

Employers should count only the hours that sleep-in employees - with no specific duties to perform during their shift - are awake, when calculating whether they are being paid the national minimum or living wage, following a shock ruling from the Court of Appeal.

The national minimum and living wage rules say that workers are working, for the purposes of calculating whether they are receiving the national or living wage, when they are required to be available at or near a place of work other than their home for the purpose of doing work.

However, there is an exception where a worker is, by arrangement, allocated suitable facilities for sleeping at or near their place of work. In that case, only the hours the worker is awake is counted for those purposes.

Historically, the courts and tribunals have ruled on the basis that in some circumstances, sleep-in workers can be working whilst asleep, even if provided with sleeping facilities. They have applied a 'multifactorial' approach in which "…no single factor is determinative and the relevance and weight of particular factors will vary with and depend on the context and circumstances of the particular case".

The net effect of previous rulings has been that a sleep-in worker was still to be treated as working throughout their shift, even while asleep, if:

• their employer had a statutory or contractual duty to have a worker on the premises at all times
• the worker was not allowed to leave the premises during their shift, and/or
• the worker was personally responsible for performing duties if the need arose, which required them to make judgements about the action to be taken, over and above merely having to call out emergency services

In this recent case a care worker provided expert care for two vulnerable adults. She worked two-day shifts, with a sleep-in shift in between. She was paid a salary for the day shifts and a flat rate for the sleep-in, plus an additional hourly rate for periods when she was woken up to carry out duties. During her sleep-ins she had a private bedroom. She had no specific duties to carry out but was expected to remain in the building in case she was needed – although she had only been woken six times over a 16 month period.

The Employment Tribunal and Employment Appeal Tribunal both found that, for the purposes of calculating whether she was being paid the minimum wage, she was working throughout her sleep-in shift - even when asleep. This was because she was obliged to be in the building and had to use her professional judgement to decide whether and how to intervene during the night, if required. Their decisions followed up to 15 cases where previous tribunals and courts had come to the same conclusion.

However, the Court of Appeal overruled the previous decisions. It drew a distinction between being available for work and actually working, saying that where an employee has no specific duties to carry out, but is merely required to 'be there', only the hours they are awake count for the purposes of deciding whether they are being paid the national minimum wage.

As the employee in this case was allocated sleeping facilities, this was evidence she was not expected to work all the time she was there, and the exception referred to above applied.

The Court also indicated that someone with specific tasks during a shift could still be treated as working throughout that shift, even if they could, from time to time, get some sleep during it. For example, a night watchman who was obliged to patrol the premises from time to time, but who was able to sleep between patrols, would be working throughout the shift for the purposes of determining if they were being paid the minimum wage, despite the periods spent sleeping.

Operative date

• Now

Recommendation

• Employers should now consider whether they can only count the hours their sleep-in employees (such as carers in a residential care home) - with no specific duties to perform during their shift - are awake when calculating whether they are being paid the minimum or living wage/li>

Case ref: Royal Mencap Society v Tomlinson-Blake [2018] EWCA Civ 1641

Please note: An article published in the June 2017 edition of Legal Alert covered this case at an earlier stage in the legal process.