Over the years, there have been several employment law cases dealing with the question of whether ‘sleep-in’ hours constitute ‘time work’ for the purposes of the National Minimum Wage (NMW) Regulations 1999. The authorities on this issue are fact sensitive and are sometimes difficult to reconcile with each other.
In Esparon t/a Middle West Residential Care Home v Slavikovska, the Employment Appeal Tribunal (EAT) held that a care assistant whose contract of employment required her to work a number of sleep-in night shifts and be available in case of an emergency was entitled to be paid the NMW for all the hours she spent at the premises.
Ms Slavikovska worked at a residential home in Surrey for people with learning difficulties. She claimed that she was required to carry out certain duties during her night shift, for which she received a fixed payment unrelated to the number of hours she spent at her employer’s premises. This worked out at substantially less than the hourly rate of the NMW. Her employer disputed that she was required to work, claiming that she was able to sleep on site but was required to be available should an emergency arise.
The Employment Tribunal (ET) concluded that Ms Slavikovska was entitled to receive the NMW for all of the night-shift hours. It not only accepted her claim that she was required to carry out a variety of tasks during the night shift, including making regular checks on the residents, but also upheld her submission that whether or not she was allowed to sleep during the shift was irrelevant.
Having carried out a review of the relevant case law, the EAT upheld the ET’s decision on both grounds. When distinguishing between cases where someone is doing time work and those where someone is merely on call, an important consideration is why the employer requires the employee to be on the premises. Where their presence is necessary to comply with a statutory requirement to have a suitable person on site as a precautionary measure, that would be ‘a powerful indicator that the employee is being paid simply to be there and is thus deemed to be working regardless of whether work is actually carried out’. In this case, the statutory regulations governing staffing in care homes require an appropriate number of suitably qualified personnel to be present at all times and Ms Slavikovska’s presence was essential in order for her employer to fulfil that obligation, even if she did nothing.
Where an employee is present in the workplace because this is required by law, they are likely to be entitled to be paid the NMW for all the hours of their shift. In Scottbridge Construction Limited v Wright, Lord Johnston suggested that the solution for employers who require employees to be at work in similar circumstances is to give them alternative and additional work which enables them to provide the employer with remunerated time at the same time as fulfilling the function required.
The Government has now revised its statutory guidance on calculating the NMW. The section on working hours for which the NMW must be paid covers sleeping between duties and has been updated to reflect recent case law on this aspect of the legislation. It provides an example of when the NMW is likely to apply and an example of when it is not.