News & Insights

Getting paid for sleeping on the job?

We explore when employees should be paid even when sleeping at work.

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:

  • What is the employer’s purpose in engaging the worker to sleep on the premises? Is the employer required by law or contract to have somebody present or is it just for convenience?
  • How restricted are the worker’s activities during their working time? Do they have to be on site at all times, or can they be in the vicinity and/or leave for short periods?
  • How much responsibility does the worker have? There is a difference between a requirement to sleep-in and to call the emergency services in the case of a break in, compared with a requirement to respond to any problems experienced by a resident under care in the night.
  • What is the immediacy of the requirement to provide services if something untoward occurs or an emergency arises? Is the worker the person who intervenes when necessary, or is the worker woken as and when needed by another worker who has the immediate responsibility for intervening?

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.