Are businesses obliged to pay the national minimum wage (NMW) while workers are on call or sleeping at work?
This question – which has huge implications for many businesses, especially those in the care sector – was considered by the Employment Appeal Tribunal (EAT) recently. The EAT had to rule on three separate cases tied to this issue, but could not offer a definitive yes or no answer. Rather, its judgment in each case hinged on the facts and circumstances.
Carer on sleep-in shift
In the first case, the claimant carer was on a nine-hour sleep-in shift during which – although she could sleep – she was solely responsible for the care of autistic adults and required to keep ‘a listening ear’ in case she was needed. The tribunal had decided that, on the facts, she was performing time work and therefore should be paid the NMW whether sleeping or not. The EAT agreed.
In the second case, the claimants worked and lived on site at a caravan park. As part of a rota they were on call to deal with customer enquiries or requests for assistance after their usual shift ended. During the on-call period they would only be paid for actual callouts, this being by way of a fixed fee per person, per callout.
The tribunal held that the statutory ‘unless the worker is at home’ exception from the NMW applied to the claimants. As they were at home, it deemed they should only be paid the national minimum wage at times when they were actually working. The EAT upheld the appeal, finding that the tribunal had failed to ‘deal with important aspects of the evidence’. The case was sent back to be reheard by a fresh tribunal.
Waking vs sleep-in night worker
The third case involved two types of worker: a ‘waking night worker’ and a ‘sleep-in night worker’; the claimant was a sleep-in night worker. The waking night worker had primary responsibility for the service user and had to be awake at all times during their shift to support them. They were paid the contracted rate of pay. The sleep-in night worker was employed to assist in an emergency and was provided with sleeping facilities and not required to be awake other than when their help was needed. The employer paid the claimant sleep-in worker £25 per night shift.
The tribunal upheld the sleep-in worker’s claim of unpaid wages, as the terms of the contract of employment contained nothing to suggest that the rate of pay for the sleep-in shifts would be any less than the standard hourly rate, and there was no subsequent agreed variation to these terms.
The employer argued that the claimant would have been told at interview that his pay for sleep-in shifts would be £25 per night. The employee was paid on that basis throughout his employment and raised no objection. Further, he only started his claim after he was dismissed. The tribunal found that it was only upon receiving advice that the claimant realised he had not been paid in accordance with the terms of his contract and, being unaware of the breach of those terms, he had not waived any breach.
The EAT dismissed the employer’s appeal, finding that the tribunal had dealt adequately with the question of waiver ‘and that the findings and conclusions reached were both open to it on the facts and in law’.
This resolved the appeal. However, the EAT judge noted that if it had been necessary to address the employer’s third ground of appeal (arguing that the tribunal had misapplied the law and failed to make proper findings of fact in relation to the national minimum wage), he would have felt unable to uphold the tribunal’s decision, as he was ‘far from confident that the Employment Judge carried out the multifactorial evaluation necessary’.
Expert employment solicitors in Eastbourne, Hailsham, Bexhill and Hastings
Though the judgments in these three cases do not supply the clarity that employers would like, they do at least reaffirm the importance of taking specialist legal advice on this type of matter. The judgments show that the question of whether the minimum wage applies for sleep-in workers or those on call is highly fact-specific.
For expert advice on this or any other employment law matter, please email Paul Maynard (Employment Law Services Partner) or call him on 01323 435 900. To learn about Paul’s skills and experience, please view his website profile.