1 London Street,
+44 (0)118 951 6200
Three cases jointly heard by the Employment Appeal Tribunal (EAT) have made the headlines recently due to the uncertainty surrounding whether ‘sleeping time’ should be categorised as working time for the purposes of the National Minimum Wage Regulations.
The question at the heart of the matter was whether employees who sleep on work premises in order to carry out their role if required, engage in ‘time work’ for the full duration of their shift or whether they are only working when they are awake to carry out their duties.
This type of shift working is very common in the care sector. The leading case centred on Focus Care Agency, a company who offer a supported living service with staff who carry out duties through the night. One of their workers claimed that the failure to pay them for the full duration of their shift (even when sleeping) constituted an unlawful deductions from wages and was a breach of contract.
The EAT held that there were four main factors which had to be considered when determining if a sleep-in worker was working:
As employers who fail to pay national minimum wage can face criminal sanctions, it is a pity that the EAT were unable to give a definitive answer of what amounts to working time in this context. It will be down to the tribunals to assess each case on the individual facts taking into account the factors outlined above.