The Employment Appeal Tribunal has recently provided clarity on the tricky issue of sleepovers and working time. There have been a number of conflicting judgments on this point over the years which have established that there is a difference between those who are ‘available’ during the night and those who are actually ‘working’. It has generally been accepted that where a worker is required to be at their place of work and at their employer’s disposal throughout the night, this should be considered working time. This rule suggests that the individual could be entitled to National Minimum Wage even in circumstances where they spend their entire shift asleep.
In Focus Care Agency Ltd v Roberts, the EAT suggested that employers should adopt a multi-factorial approach when assessing if an employee is actually working just by being present at the workplace. The following factors were considered to be of particular relevance:
- The employer’s particular purpose in engaging the worker. For example, if the employer is subject to a regulatory or contractual requirement to have someone present during the particular period the worker is engaged, that might indicate that the worker is working just by being present;
- The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer. The employer should consider whether the worker can leave the premises to do other things without fear of discipline;
- The degree of responsibility undertaken by the worker. The EAT referred to an earlier judgment in which it was held that there was a distinction between those who sleep at the premises to call out the emergency services and those who carry out more extensive duties such as care-giving; and
- The immediacy of the requirement to provide services if something untoward occurs or an emergency arises. The EAT suggested that a distinction could be drawn between those who have immediate responsibility to intervene during a disturbance and those who are woken by another worker if needed.
This judgment suggests that most care staff who undertake sleepover shifts and bear responsibility for the service user throughout the night are working for the purposes of National Minimum Wage. This ruling is, of course, subject to any appeal or subsequent litigation in which the tribunal takes a different approach. This is a difficult area for many employers so please contact your Employment Solicitor if you require any assistance.