Minimum Wage: Requirement to sleep at place of work

Posted: 31st August 2011

This case concerned a temporary pub manager who was required, under the terms of her contract of employment, to reside and sleep at the premises.An earlier tribunal had found that she was required to sleep on the premises as a ‘minimum security or preventive measure’ and that once the pub closed no actual work was required. The tribunal had also found that she was not required to stay in every minute of the day and could pop out if she wished.

The Employment Appeals Tribunal (EAT) had to decide whether the time she spent at the premises overnight had to be taken into account when deciding whether or not she had been paid the national minimum wage.

The EAT held that the tribunal, who had dismissed the claim, had been wrong to decide the case under the Working Time Regulations 1998 as those regulations have no application in the context of the national minimum wage. The issue, the EAT said, should have been determined exclusively by reference to the National Minimum Wage Regulations 1999. Having said that the EAT was satisfied that the tribunal had reached the right result even though it went about it the wrong way. Accordingly the appeal was dismissed on the basis that time spent sleeping did not count as ‘work’ for the purposes of calculating an employee’s hourly rate as against their entitlements under the National Minimum Wage Regulations.

Case reference: Ms S Wray v JW Lees & Co (Brewers) Ltd

A worker who is sleeping on premises and ‘on call’ may well be working during that time for the purposes of the Working Time Regulations which has an impact on other statutory entitlements such as how holiday leave is accrued. However, hours spent on call do not count towards a national minimum wage claim unless the employee is actually awake and working.