Sleeping on the job…

What’s the development?

If you need people to be on call overnight at a place of work, then you’ll already be aware that this scenario triggers tricky legal issues – National Minimum Wage (NMW) and Working Time. This is relevant for a wide range of organisations, e.g., the care sector and other residential settings (including boarding schools and hotels).

Until now, there’s been some to-ing and fro-ing in case law on this subject, but on the question of NMW, the EAT has just reached a decision on three joined cases – all arising from different settings (including a caravan park and a care setting). There were varying conclusions in relation to each of the cases, but the court gave some useful overall guidance on whether National Minimum Wage might be triggered for time spent on-call overnight at the place of work.

This decision emphasises that no single factor will be conclusive; it’s a case of weighing up a variety of factors:

–  the employer’s particular purpose in engaging the worker.   E.g., if the employer is subject to a regulatory or contractual requirement to have someone present during the period in question, that might point towards the worker actually working by simply being present.

–  the extent to which the worker is required to remain on the premises (e.g. risking discipline if he or she slips away to do something else).

–  the degree of responsibility undertaken by the worker. E.g., there was a perceived difference between sleeping at the premises to call out the emergency services in case of a break-in or a fire as compared with a night sleeper in a home for the disabled where the worker has a heavier personal responsibility in relation to duties that might have to be performed during the night.

–  the immediacy of the need to provide services if an emergency arises. E.g., whether the worker is the person who decides whether to intervene and then intervenes when necessary, or whether the worker is woken as and when needed by another worker with immediate responsibility for intervening.

What does this mean for employers?

Employers organising overnight on-call sleeping shifts are often grappling with the complexities of the law in this area.

Entitlement to NMW is increasingly on the radar of unions and HMRC. HMRC is imposing fines for those investigated (and there is now a name and shame system in place).  However, HMRC is also under criticism for taking an inconsistent approach to these cases in practice.

This case at least gives some guidance which will help employers to carry out an audit of their arrangements to consider whether there is any exposure in this regard.

Our comment

We know that there are mixed feelings amongst both employers and workers about the current NMW rules regarding on-call overnight work. Many are calling for a sensible solution, perhaps having different rates of pay for time sleeping and time actually working. In the current funding climate, the financial pressures on the social care sector are significant. Carrying out audits to quantify any exposure is wise. This issue will no doubt be influenced by the political climate and may change in the long term, particularly if sector lobbying is effective.