To some people, being paid to sleep might sound like a “dream” job.
However, for others, night-time obligations such as being on call are part and parcel of the job, even if they do get to sleep for part or all of the night. These types of working arrangement throw up some important considerations, not least in relation to pay and in particular National Minimum Wage (“NMW”).
NMW – when payable?
Employees are entitled to be paid NMW when they are working. How does this apply for those who do sleepovers or similar night working arrangements? Are such employees deemed to be working the whole night (even if sleeping), or just when they are awakened to respond to a “call”? Well, surprise surprise, the classic legal answer applies – it depends.
The issue of NMW for sleepover/on call work has been the subject of much litigation. Given the potential financial implications of the topic it is likely that there will be more litigation in the future. The Employment Appeal Tribunal recently heard three such cases reported in a conjoined judgment (Focus Care Agency Ltd) v Roberts.
The EAT highlighted that every case will turn on its own facts and that a number of factors are relevant to when a person will be regarded as working for NMW purposes. Examples of relevant factors include:-
- Whether the employer is subject to a contractual or regulatory requirement to have the employee present during a particular period.
- The extent to which the employee’s activities are restricted by the requirement to be at the employer’s disposal (so can they nip out for fish and chips as they please?).
- The degree of responsibility taken by the employee (e.g. compare the limited responsibility of being present on premises to call emergency services in the event of an emergency compared with a night sleeper in a care home who might face more personal responsibility in night duties).
- The immediacy of the requirement to provide services if an emergency occurs (does the employee decide whether and how to intervene in an emergency or is the employee woken as and when required by someone else with immediate responsibility?).
One thing that is certain is that this topic is devoid of certainty. That seems to be the nature of the beast and where the tribunals are clear that a multifactorial approach is required, every case will turn on its own facts. The bullet points above were considered relevant factors in the Roberts case. Needless to say there will be other relevant factors.