Employment Update for Small Businesses
May 2017

Dear Visitor,

As you may be aware, there have been a number of cases brought in recent years on the question of staff who are required to spend the night at work and whether they should be paid at least the National Minimum Wage for every hour. The key issue being time spent asleep at work. It sounds crazy to say that workers should be paid for being asleep, but if they are on-call and are interrupted regularly to carry out work activities, then it is perhaps not surprising that this has become an issue.  This month we look at the latest case to consider this question.

Please contact me if you would like to find out a bit more about any of the subjects raised in this update or if you need any help or advice. 

Please forward this email to any of your contacts who might find it of benefit. 

Peter Etherington
Tel: 01664 668164


Should Workers be Paid Whilst Asleep at Work?

The National Minimum Wage and “Sleep-in” Shifts

The Employment Appeal Tribunal (EAT), in Focus Care Agency Ltd v Roberts, has yet again considered the vexed question of employees who work “sleep-in” shifts, and whether or not they should be paid the National Minimum/Living Wage (NMW) for all the hours that they are on shift, even when they are sleeping. This is clearly a very important question for a number of employers, who need to provide a service at night, where staff need to be available in case of emergencies or to provide care services.

Unfortunately, whilst the EAT’s decision is very detailed and considers all the relevant factors in a great deal of depth, it has been unable to provide a definitive decision for employers. It has pointed out that each case will need to be decided based on its own particular facts. The EAT has provided some guidance in terms of the sorts of factors that should be considered. It all hinges on whether or not the period for which the worker is engaged should be considered to be working time, for NMW purposes. The EAT specifies the following considerations:

  • What is the employer’s purpose in engaging the worker, and what is the worker required to do? If the employer needs the worker to be present to meet a regulatory or contractual requirement, that could be relevant in determining that the worker is “working” merely by being present.
  • The amount of restriction placed on the worker during the sleep-in period. If they are required to remain on the premises for the full duration and could face disciplinary proceedings if they pop out, then that again may point towards the full period being subject to the NMW.
  • The amount of responsibility that the worker has may also be relevant. For instance, if they just need to be there in order to call the emergency services if there is a fire or a break-in, that would be less likely to indicate they are “working” whilst they are sleeping, as opposed to someone being available to provide care to a disabled person during the night.
  • The immediacy of the requirement to provide services in the event of an emergency could also be relevant. So in a caring situation, if there is someone else working overnight (perhaps on a “waking night” shift), and the worker in question is allowed to sleep and will only provide their service if the other worker needs their help, then that is less likely to mean that they are “working” whilst asleep.

The EAT was only asked to determine this question in relation to “time work” as defined in the National Minimum Wage Regulations. This means where the worker is paid in relation to the hours they work (so hourly paid staff, for instance).  But the Regulations also deal with “unmeasured work”, which is where a worker can be paid in accordance with a daily average agreement, and this was not scrutinised by the EAT. With “unmeasured work”, the employer and worker can agree a reasonable estimate of hours that would be worked within a certain period under a daily average agreement, and the worker must be paid the NMW for the hours specified in the agreement. So it may be possible to enter into a daily average agreement for staff who work sleep-ins, treating these shifts as “unmeasured work”. The employer could then estimate how much time the worker would be likely to be awake and doing work under the agreement, and pay the NMW for those specified hours, rather than for the full duration of the sleep-in period.

The problem with this “unmeasured work” approach is that it has not been tested in the tribunal to any great extent, since this most recent flurry of cases on ‘sleep ins’, so there is no guarantee that it would be accepted if challenged. However, if a worker has willingly entered into a daily average agreement, and if the hours specified are reasonable, and are checked and amended from time to time, there is every chance that it could offer the necessary protection.

If this is an issue that is relevant to your organisation, please contact me to discuss it further.

National Minimum and Living Wage Rates

The current rates for the National Living Wage (for those aged 25 and over) and the National Minimum Wage are as follows:

£7.50 per hour for workers aged 25 and over
£7.05 per hour for workers aged 21 to 24
£5.60 per hour for workers aged 18 to 20
£4.05 per hour for workers aged 16 and 17
£3.50 per hour for apprentices under 19 and those over 19 in their first year*

*N.B. Apprentices over 19 and who have completed at least one year are entitled to the appropriate rate for their age.