The Employment Appeal Tribunal (EAT) has considered the approach to be adopted when deciding whether employees who ‘sleep-in’ to carry out duties, if required, are entitled to be paid the National Minimum Wage when they are sleeping.
The EAT concluded that there is no single answer to this question and indicated that each case is likely to turn on its own facts. However, the EAT suggested that the following factors are relevant when determining whether a person is ‘working’ by being present (and therefore entitled to be paid as such):
The employer’s particular purpose in engaging the worker, which might involve looking at whether there is a regulatory or contractual requirement for someone to be present during the particular period that the worker is engaged to be present.
The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer, considering, for example, whether the worker is required to remain on the premises, and if they do not do so, what may happen in terms of discipline etc.
The degree of responsibility undertaken by the worker - In a previous case, the EAT distinguished between the limited degree of responsibility in sleeping in at the premises to call out the emergency services in case of a break-in or a fire on the one hand, and a night sleeper in a home for the disabled where a heavier personal responsibility is placed on the worker in relation to duties that might have to be performed during the night; and
The immediacy of the requirement to provide services if something untoward occurs or an emergency arises, which might involve considering whether the worker him or herself is the person who decides whether to intervene and then intervenes when necessary, or whether the worker is woken as and when needed by another worker with immediate responsibility for intervening.
You can read the case here: http://www.bailii.org/uk/cases/UKEAT/2017/0143_16_2104.html
If you would like to discuss the implications of this decision further in respect of working arrangements of your workforce, or you require support on any other employment law matters, please do not hesitate to contact the team on 0141 331 5150