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Are sleep-in workers entitled to the national minimum wage?
Anna Beale reflects on the recent EAT Judgment concerning national minimum wage for “sleep-in” workers doing “salaried hours work” in a residential care home: Shannon v Rampersad & Rampersad t/a Clifton House Residential Home
The question of whether workers who “sleep-in” overnight at their workplace are entitled to the minimum wage for some or all of their hours of attendance has caused difficulty for some years. The recent judgment in Shannon v Rampersad & Rampersad t/a Clifton House Residential Home UKEAT/0050/15/LA muddies the waters still further.
The problem arises because of the wording of the provisions which define, in particular, time and salaried hours work. All of the existing cases were decided under the National Minimum Wage Regulations 1999, the relevant provisions of which have now been consolidated into the National Minimum Wage Regulations 2015. Whilst there are some differences in the wording, the import of the new provisions appears to be similar.
As Shannon is concerned with salaried hours work, it is easiest to concentrate here on those provisions. “Salaried hours work” is defined as work for which an employee is paid an annual salary (in equal instalments of some kind) in respect of basic contractual hours (reg 4 of the 1999 Regulation and reg 21 of the 2015 Regulations). In addition, under the 1999 Regulations, in determining the hours of salaried hours work where basic hours have been exceeded:
- work includes time when a worker is available, and required to be available, at or near a place of work for the purposes of working unless the worker’s home is at or near the place of work and the time is time the worker is entitled to spend at home (reg 16(1));
- in regulation 16(1A), this is expressed to be subject to the caveat that, in relation to a worker who by arrangement sleeps at or near a place of work and is provided with suitable facilities for sleeping, time during the hours he is permitted to use those facilities for the purpose of sleeping shall only be treated as being salaried hours work when the worker is awake for the purpose of working.
Regulation 27 of the 2015 Regulations sets out similar provisions in slightly simpler terms.
In the existing case law, the courts have considered first whether the employee is performing salaried hours work (as defined in regulation 4, now regulation 21) or time work (as defined in regulation 3, now regulation 30) throughout the “sleep-in” period. It is only if the employee cannot be said to be “working” during those hours – if he/she is, in the words of regulations 15 and 16, only “available for work” - that it is necessary to consider whether he/she should be deemed to be working by dint of those regulations, subject always to the “sleeping” caveat in regulations 15(1A) and 16(1A).
Shannon itself concerned a familiar scenario in these cases: an employee at a residential care home for the elderly. Mr Shannon was employed as an “on call night care assistant”, with accommodation in the Studio, a flat in the residential care home itself. The flat was his home. He was required to be in the Studio from 10 p.m. until 7 a.m., and was able to sleep during those hours, but was also required to respond to any request for assistance by the night care worker on duty at the home. It appears that the Respondent was under a statutory obligation to ensure that appropriate staffing levels were in place, and that this obligation was met by having a waking member of staff and a sleeping member of staff (Mr Shannon) employed during the night.
HHJ Peter Clark did not first consider whether Mr Shannon was “working” (doing “salaried hours work”) under the definition in regulation 4 throughout those hours, but instead went straight to the deeming provision in regulation 16(1). He held that, whilst Mr Shannon was “available” for work during his sleep-in hours (and thus could be deemed to be working and eligible for the NMW), he was available at his home, so fell within the exception. He went on to say that regulation 16(1A) was potentially engaged, and concluded that Mr Shannon was only working when he was awake for that purpose. In fact, on the Judge’s reasoning, that latter conclusion is superfluous as Mr Shannon would have been denied the minimum wage on the basis of regulation 16(1) alone.
Although he did not explicitly consider whether Mr Shannon’s sleep-in hours fell within the regulation 4 definition of “salaried hours work”, the Judge did analyse much of the pre-existing case law which deals with that question. He concluded that those cases where the NMW had been found payable were distinguishable because in those cases the workers were “working by simply being present”.
In my view, whilst these cases are particularly fact-sensitive, and whilst Shannon is undoubtedly close to the line, the Judge’s decision is out of step with the weight of recent decisions in similar cases.
In Wray v JW Lees & Co (Brewers) Ltd  ICR 43 and Esparon v Slavikovska  ICR 1037, an important distinction between the “working” and “available to work” cases was held to be whether the employee had a responsibility (in the latter case, fulfilling the employer’s statutory obligation) for people on the premises or not. In Whittlestone v BJP Home Support Ltd  ICR 275 and MacCartney v Oversley House Management  IRLR 515, decisive emphasis was placed on provisions of the contract requiring the employees to be at a specified place or very nearby during specified contractual hours, all of which fell to be paid at the NMW rate.
All of those positive features were present in Shannon, and it is not entirely clear why the Judge took the view that the claim fell on the other side of the line. Two factors are potentially relevant: firstly, in order to reach the contrary conclusion, the Judge would have had to overturn the Decision of the ET on what is to a large degree a question of fact; and, secondly, the Studio was Mr Shannon’s home. This was not the case in most of the other residential home claims, although it was in MacCartney, and does not appear to have affected the outcome in that case.
This case is a good illustration of just how fact – and tribunal – sensitive these issues are. Perhaps the only reliable guidance is that offered by Langstaff P in Whittlestone:
“Work is to be determined on a realistic appraisal of the circumstances in the light of the contract and the context within which it is made”
but that can only take advisors so far.