The EAT has recently given judgment on three cases it heard at the same time in which it was required to determine whether workers who sleep-in during the night, to carry out duties if needed, carry out ‘time-work’ for the whole of their shift or whether they are only entitled to the National Minimum Wage when they are awake and carrying out duties.
The lead case of the three was Focus Care Agency Ltd v Mr B Roberts UKEAT/0143/16/DM with the other cases being Frudd and another v The Partington Group Ltd UKEAT/0244/16/DM and Royal Mencap Society v Mrs C Tomlinson-Blake UKEAT/0290/16/DM.
The EAT concluded that a number of factors need to be taken into account when deciding whether a worker is working merely by being present at the workplace, even if asleep, or whether they are ‘available and required to be available at or near their place of work for the purposes of working’ and there subject to special rules in the National Minimum Wage Regulations 2015.
Amongst the factors the EAT decided were potentially relevant when making a decision in these cases included; the employer’s particular purpose in engaging the worker, such as whether there was a regulatory requirement to have someone present at the workplace with another potentially relevant factor being the extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer.
Each case of this type should be considered on its own facts and seeking appropriate advice is recommended.
This is an important area for both employers and employees. Employers need to take steps to ensure they are meeting their National Minimum Wage obligations to avoid the potential implications of a breach which can include the risk of criminal sanctions.
If you are an employer who engages workers who sleep in the workplace at night and would like advice following this judgment, please do not hesitate to contact a member of our Employment team on 01642 356 500.