Sleeping at work
Should an employee get paid for sleeping on the job? When asking this question most people would likely say no on impulse. The idea of being paid to sleep just does not sound quite right. For those of us in 9-5 jobs, getting caught by your boss sleeping at work would land you in hot water. However, what about those of us who work in jobs where it is a requirement to sleep over? What about people such as carers, who are required to be on call 24 hours a day and to get up through the night on immediate request and on multiple occasions to aid the person they are caring for? Should their whole shift be classed as payable work? There has been a spate of cases recently discussing just that.
The most recent case law on this subject comes from a conjoined appeal of three cases: Focus Care Agency v Roberts UKEAT/0143/16/DM; Frudd and another v The Partington Group UKEAT/0244/16/DM; and Royal Mencap Society v Tomlinson-Blake UKEAT/0290/16/DM.
The Employment Appeal Tribunal Judge in this conjoined appeal was asked to to consider whether individuals on night shifts were ‘working’ for the purposes of calculating pay under the national minimum wage legislation.
Focus Care Agency v Roberts
- Mr Roberts was employed by Focus Care Agency for a number of years as a carer and worked shifts.
- He was dismissed from his employment and claimed unfair dismissal but also made a claim for unlawful deduction of wages at this time.
- His contract of employment stated that he would be paid an hourly rate for any night shift worked but he was in fact only paid a flat rate fee.
- Mr Robert’s duties as a ‘sleep in night worker’ required him to be on site but meant he could sleep at night and was only required to assist with emergency care.
- This was in contrast to the ‘waking night worker’ who required to stay awake through the night and be the primary carer for the service users during that time.
- The Employment Tribunal decided the case based on Mr Robert’s contract which made no reference to a flat rate fee during the night.
- Mr Roberts was therefore successful in his claim and was entitled to the hourly rate.
- The Employment Appeal Tribunal upheld this decision.
Frudd and another v The Partington Group
- Mr and Mrs Frudd were employed as a reception/warden team at a caravan park and lived on site.
- They worked day shifts but also were required, subject to the rota, to be on call from the end of their shift to the following morning on certain nights.
- They were not paid for their time spent on call but were paid a flat rate emergency call out fee for any occasion when they were called out and provided assistance.
- Mr and Mrs Frudd claimed they should have been paid for the entire time that they were on call.
- The Employment Tribunal disagreed with Mr and Mrs Frudd and stated that as they were at home during their time on call they were not entitled to be paid for this.
- The Employment Appeal Tribunal disagreed with the methodology used by the Employment Tribunal in reaching their conclusion.
- The EAT remitted the case back to the Employment Tribunal for a fresh trial and further consideration.
Royal Mencap Society v Tomlinson-Blake
- Ms Tomlinson-Blake was a highly trained carer working for Mencap to care for two men who required 24 hour care.
- She was employed to work shifts which included a nine hour night shift.
- During this night shift she was required to remain on site and be available to assist the men through the night if required. If not required she was allowed to sleep.
- She received a flat rate fee for the night shift and an additional payment which depended on the level of care she had to provide through the night.
- Ms Tomlinson-Blake argued that, contrary to Mencap’s policy, the night shift in its entirety (including the time spent sleeping) was working time and that she should be paid her usual salary for this rather that the lesser flat rate fee.
- She brought a claim for back-pay based on the hours she had worked.
- The Employment Tribunal agreed with Ms Tomlinson-Blake and held that the time spent on the night shift was indeed working time and she was entitled to the back pay she claimed.
- Mencap appealed this decision.
- The Employment Appeal Tribunal upheld this decision on appeal.
Potential relevant factors
In his judgement the judge at the EAT, Judge Simler, stated that a “multifactorial evaluation” needed to be applied by considering a number of factors and he listed a number of potentially relevant factors in determining whether a worker is working (and therefore should be paid) to include:
- the employer’s purpose in employing the worker (is it a statutory or contractual requirement?);
- the extent to which the worker’s activities are restricted by the requirement to be present and at the employer’s disposal (are they able to pop out during the shift or would they be disciplined for doing so?);
- the degree of responsibility undertaken by the worker;
- the immediacy of the requirement to provide services if something untoward happens or an emergency arises.
What can we take from these cases?
This judgement does not unfortunately provide certainty to a notoriously complex area of law and each case will depend on its own merits. However, going forward, employers should pay heed to the potential relevant factors set out by the EAT in considering whether they should be paying their employee on an hourly rate for any night shift including when sleeping. It would appear more likely that someone like Ms Tomlinson-Blake who is required to provide care through the night upon immediate request would be entitled to claim their hourly rate for the entire shift as opposed to a lesser flat rate fee.
Employers are advised to ensure the contracts of employment are kept under review and accurately reflect any agreed changes (to avoid a situation like Focus Care Agency v Roberts).
Pay practices that do not accurately reflect worker’s entitlements in this area will leave the employer open to the risk of employment claims, penalties and criminal sanctions including fines, so it is important for employers to be live to any potential considerations to ensure they are assessing these matters appropriately.
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