Anna Beale considers the most recent guidance from the EAT on the vexed question of whether workers should receive the minimum wage for “sleep in” shifts.
Keen readers of this site may recall my critical blog on the EAT decision in Shannon v Rampersad. In that case, HHJ Peter Clark decided that an ‘on call night care assistant’ in a residential home for the elderly, who was required to be in his accommodation on the premises between 10 pm and 7 a.m., and to respond to any requests by the night care worker, was not entitled to the minimum wage for those hours. Caspar Glyn QC is now taking Shannon to the Court of Appeal, but, unsurprisingly in view of the increasing frequency of these claims, another decision has now emerged from the EAT.
In the conjoined cases of Focus Care Agency Ltd v Roberts, Frudd v The Partington Group Ltd and Royal Mencap Society v Tomlinson-Blake, the President of the EAT considered all of the recent appellate case law on this difficult area and gave some helpful guidance on the correct approach for employment tribunals.
She did so after considering and rejecting a sustained challenge to the approach taken in many of the earlier decisions on this issue, including British Nursing Association v Inland Revenue  ICR 19 and Scottbridge Construction Ltd v Wright  IRLR 21.
As explained in my earlier blog, in most of the existing case law, the courts have considered first whether the employee is performing one of the particular types of work identified under the National Minimum Wage Regulations (usually salaried hours work (as defined in regulation 21) or time work (as defined in regulation 30)) throughout the ‘sleep-in’ period. It is only if the employee cannot be said to be “working” during those hours that she is required to fall back on the provisions of regulation 27 (in the case of salaried hours work) or regulation 32 (in the case of time work). Those regulations provide that work shall be deemed to include periods where a worker is available and required to be available at or near a place of work for the purposes of working, unless:
- she is at home; and/or
- she is asleep, even if she is sleeping at or near the place of work.
One of the employers, Mencap, argued before Simler J that (taking time work as the example), the defining provisions in regulation 30 must be read and given effect together with the deeming provisions in regulation 32. If this is done, it is clear that standby or sleep-in arrangements were not intended by Parliament to constitute time work in themselves. As a fall back position, Mencap argued that a distinction could be drawn using the concept of ‘core’ working hours. Thus a night-watchman, who only undertakes sleep-in shifts, should be paid the minimum wage for those core working hours, but where an individual’s core working hours are during the day, with additional responsibilities on a sleep-in night shift, the latter should not attract the minimum wage.
The President disagreed with Mencap’s primary analysis, pointing out that it had been rejected in the cases determined under the 1999 Regulations, and that it was agreed by all that subsequent amendments had not been intended to alter in any fundamental way the previous law. She also rejected the core hours distinction, pointing out that it would be entirely illogical if a night watchman were to be entitled to the minimum wage for his sleep-in shifts as long as those were the only shifts he performed, but not if he also decided to start working day shifts.
The President reaffirmed what might now be described as the orthodox approach. In all cases, the first question that must be determined is whether, even in periods where a worker is permitted to sleep, she is nevertheless working by being present at the workplace. It is only if she is not working that the ‘deeming’ provisions come into play.
How, then, to determine whether an individual is ‘working’ at any particular time? Simler J acknowledged that there is no bright dividing line, but offered probably the most comprehensive explanation to date of how tribunals should approach this difficult question. Her guidance is summarised below.
- Work must be determined on a realistic appraisal of the circumstances in the light of the contract and the context within which it is made. Tribunals must therefore consider the contract; the nature of the engagement; the work required to be carried out; whether the period in question is part of the worker’s working hours; whether pay is calculated by reference to a shift or something else and if so what; and whether an identifiable period is specified during which work is to be done.
- The fact that a worker has little or nothing to do during certain hours does not mean she is not working; ‘work’ is not equated with any particular level of activity and can include merely being present to deal with something untoward that might arise.
- The following are potentially relevant factors in determining whether a person is working by being present:
- The employer’s particular purpose in engaging the worker; e.g. if there is a regulatory or contractual requirement to have someone present.
- The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer, including whether the worker would be subjected to disciplinary sanction for leaving the premises.
- The degree of responsibility undertaken by the worker during the period; contrasting a simple requirement to ‘sleep in’ in order to call the emergency services in the case of fire with a requirement to respond to any problems experienced by a resident in the night.
- The immediacy of the requirement to provide services if something untoward occurs or an emergency arises; e.g. whether the worker is likely to be woken directly by a service user, or only as needed by another worker who has immediate responsibility for intervening.
A failure by a tribunal to apply this multi-factorial approach will constitute an error of law.
The factual decisions in the individual claims make interesting reading, and emphasise the difficulty of predicting the outcome in any given case. However, whilst the lack of certainty makes life complex for employers and workers alike, in my view the employers’ attempts to lay down hard and fast rules were rightly rejected as being incompatible with the previous case law and the Regulations themselves. Subject to a surprise decision by the Court of Appeal, if more certainty is to be brought into this area it is likely that further legislation will be needed. One possible option for consideration might be the development of legislative provisions for calculating a flat rate for ‘sleep-in’ shifts.
The (successful) appellants in Frudd v Partington were represented by Adam Ohringer of Cloisters.