Can you be working when you’re asleep?
Posted: 18th July 2018
Many employees, particularly in the care industry, are required to sleep in overnight at or near their workplaces in order to provide assistance if needed – but are they entitled to receive the National Minimum Wage (NMW) for hours spent in slumber? The Court of Appeal has tackled that issue in a guideline ruling.
The two cases under consideration concerned workers (sleepers-in) who were contractually obliged to spend the night at or near their place of work on the basis that they were expected to be asleep for all or most of their shifts, but could be woken if required to undertake some specific activity.
The Court noted that, by operation of the National Minimum Wage Regulations 1999, a worker who is, and is required to be, available for work at or near his workplace is entitled to have the time in question counted as time worked for NMW purposes. However, an exception applies where a worker is at home during the relevant period.
A further exception (the sleep-in exception) operates where an arrangement is in place that a worker will be asleep for all or part of a shift and is given facilities for doing so. In that situation, only those hours during which a worker is, and is required to be, awake for the purposes of working will count.
Noting that conflicting authorities had given rise to a need for clarification of the law on this point, the Court found that, on a straightforward reading of the Regulations, workers sleeping in under such arrangements will only be entitled to have their sleep-in hours counted for NMW purposes where they are, and are required to be, awake for the purposes of performing some particular task.
The first case concerned a mental health charity worker who provided care within a sheltered home to two men who suffered from autism and learning disabilities. She carried out nine-hour sleep-in shifts at night for which she was paid a flat rate. She was infrequently called upon to wake up and intervene, but argued that she was entitled to be paid the NMW in respect of the hours she spent sleeping.
In allowing the charity’s appeal against an earlier ruling in the woman’s favour, the Court noted that she slept in by arrangement at her place of work and was provided with suitable facilities for doing so. She was therefore to be treated as being available for work during the hours when she was asleep, but not actually working. The sleep-in exception applied to her case and only those hours during which she was required to be awake for the purpose of working counted for NMW purposes.
The second case concerned a man who lived in a studio attached to a residential care home and was required to be on call at night. He claimed almost £240,000 in back pay on the basis that the entirety of his on-call hours counted as salaried hours for NMW purposes, 365 days a year.
In rejecting his appeal against the previous dismissal of his claim, the Court noted that the crucial question was whether he was in fact working when asleep, or merely available for work. It was impossible on any common sense approach to describe him as actually working except when he was called upon to be awake and provide assistance in caring for residents.