When does a requirement to sleep for work count as time that should be paid? The EAT has given clear guidelines.
Under Regulation 32 of the National Minimum Wage Regulations 2015, workers are entitled to be paid when they are available for work but not when they are asleep. However, they would be entitled to be paid if they were actually working, as opposed to being available for work.
But can someone be working whilst sleeping? Although this might seem counter intuitive, it can be possible in certain circumstances and this is what the EAT considered in the recent conjoined decision in Focus Care Agency v. Roberts, Frudd v. The Partington Group and Mencap v. Tomlinson-Blake.
The EAT have ordered that a multi-factorial approach must be taken i.e. several different factors should be looked at in order to work out whether a worker is working and therefore should be paid despite the fact they are asleep.
The four potentially relevant factors that they listed in this case are as follows:
- Purpose of work: Does fulfilment of the duties in question simply require the individual to be present?
- Strictness of the requirement that the individual be present: For instance could the employee be subject to disciplinary procedures if they are not present whilst sleeping?
- Degree of responsibility and types of activities: For instance, does the worker need to deal with life threatening situations?
- Immediacy of requirement: Does the individual need to help in emergency situations?
Turning to the specific cases, the EAT dealt with a care worker who was required to sleep-in because they were supporting vulnerable adults, and needed to keep an ear out and deal with incidents that might occur. Sleep was counted as work in this case.
In another case, however, on-site caravan park wardens were not treated as working whilst they were sleeping. Although they were on-call the Tribunal decided that they should effectively be treated as if they were at home.
We do not believe that the factors mentioned by the Tribunal should be set in stone. The Tribunal was very keen for these cases to be treated one by one, on its own individual circumstances. They were very clear that a multi-factorial approach should be taken rather than looking at previous cases. This could make it either easier or harder to decide whether an individual is working while they were sleeping, depending which way you look at it.