A recent decision of the European Court has brought this issue back into the news. In the case the Court heal that stand-by time spent at home but within 8 minutes travel of a workplace was 'working time'.
The question of whether a worker should be paid the national Minimum Wage (NMW) rate for the whole shift or just the time s/he is performing work duties when on call can be difficult.
If the worker is well paid an employer may not have to worry whether the NMW rate is being paid. But if the worker is paid the NMW or just above it and the employer gets it wrong the repercussions can be serious.
The NMW Regulations say if the worker is on call i.e. required to be available for the purposes of working but not actually working at or near a place of work, and is provided with suitable facilities for sleeping, time during the hours they are permitted to use those facilities for the purpose of sleeping shall be treated as working time but only when the worker is “awake for the purposes of working”.
At first glance it appears that time sleeping or awake for purposes other than work, is not treated as work. But it is important to remember that this rule only applies when deciding whether a worker who is merely available for work should be treated as working. Where the person is actually working, all of the working time must be counted and they must be paid at least the NMW for the full shift.
So the issue is whether the worker being present is in itself part of the job s/he is employed to do or, is the worker is genuinely only “on call” during that shift? If it is the former the worker is entitled to be paid for the whole shift.
Deciding whether a person is actually working during the whole shift can be difficult where the employee sleeps overnight at the workplace or has their home there. In 2016 the EAT said that there is no single test that can be applied to determine the issue; a “multifactorial” test must be applied including:
• What is the employer’s particular purpose in engaging the worker. For example, if there is a regulatory requirement to have someone present at all times that might indicate that the worker is working simply by being present.
• Is the worker’s activities restricted by the requirement to be present and at the disposal of the employer. For example could the worker be disciplined if they left their post during the shift.
• What degree of responsibility does the worker have and what types of activities could they be called upon to perform.
• How urgent is the requirement to provide the service if something untoward or an emergency occurs.
The case law below demonstrates how difficult it is to determine whether a worker is “working” for the whole shift or just “on call”.
Cases where the on-call time was in fact held to be working time:
In British Nursing Association v Inland Revenue: The Court of Appeal held that nurses providing a night service by telephone from home were doing “time work” through their shift, and were not merely on call. Because the work during the day was exactly the same as at night except that the worker could relax at home when not actually answering the telephone. It was noted that during the day when they were at the employer’s premises it could not be argued they were not working unless engaged on a telephone call. So the same applied at night since the service provided was the same.
In Vasquez-Guirado and another t/a The Watermeadows Hotel v Wigmore: An hotel worker was working the whole time she was required to be on the premises. Her job involved looking after the hotel and guests at night. She was required to be available in the hotel and was effectively never off duty except on Mondays and for three hours a day Tuesday to Friday which were the only times she was allowed to go out. Her room in the hotel was not her home but her workplace; she could not do as she pleased when she was there (she was forbidden to keep her cats there). She could be interrupted at any time and was not free to come and go as she chose or pursue her own interests. Any time that she was required to be available to respond to calls in the hotel (even time spent in her own room) was working time.
In Burrow Down Support Services Ltd v Rossiter: A night watchman at a care home, who was permitted to sleep for much of his shift on facilities provided for that purpose, was entitled to the NMW for each hour of his shift. Even during the times when he was permitted to be asleep, he was still required to deal with anything that might arise in the course of his shift. This was not a case he where he was required to merely be available to work during his shift; he was required to be present and was therefore working even while asleep.
In Whittlestone v BJP Home Support Ltd : A care worker was entitled to be paid the NMW for the whole period during which she stayed at the homes of young vulnerable adults. She was provided with a camp bed in the living room of the house, and was permitted to sleep, but had to be available between 11pm and 7am if required. She was paid a fixed rate of £40 for the eight hour period. The EAT said this was “time work” because she was required to be present throughout the period and would have been disciplined had she not been. The fact that her physical services were not called upon during the night was irrelevant since her job was to be there.
In Esparon t/a Middle West Residential Care Home v Slavikovska: A senior care assistant worked at a care home during the day. She was also resident at the home and did “sleep-in shifts” through the night (9pm until 7am), at the rate of £25 a night. She was allowed to sleep during these shifts but was required to be on the premises to carry out ad hoc duties and be on hand in emergencies. A tribunal and the EAT said the claimant had actually worked during her sleep-in sessions and was on the premises because the employer had a legal obligation to have adequate staff available at all times. So it was essential that she was there even if she did nothing and in effect, she was being paid simply to be present.
Cases where on-call time was not working time:
In Wray v JW Lees and Co (Brewers) Ltd a temporary pub manager required to sleep on the premises was not actually working overnight. She was not in a position analogous to that of a night watchman, or a night-sleeper in a residential care home who had a responsibility throughout the night for those present in the home. She was allowed to leave the premises at any time, provided she slept there, as a minimum security measure or preventative measure. That largely meant simply that the property was less likely to be burgled if it appeared to be occupied, even if no-one was there at a particular moment. If something untoward occurred at the premises while she was there, she would have to deal with it, for example by calling the emergency services. However, that very limited responsibility was different from the responsibility falling on a hotel manager and did not mean she was working for the whole time she was there.
City of Edinburgh Council v Laude it was held that on-call time during which sheltered housing wardens who lived on site were asleep was not working time. The EAT held that the worker’s “main job” was done during the hours of 8.30 am to 5.30 pm, and was separate from, and done at a time other than, the overnight “on call” period, which did not amount in its entirety to salaried hours work.
In Shannon v Rampersad a care home assistant was employed to provide sleep-in cover at night and was provided with free accommodation, with utilities included, in an on-site flat. He was required to be in the flat from 10pm until 7am and was able to sleep during those hours. He had to respond to any requests for assistance, although in practice he was rarely called upon. As his home was his place of work, the exception in regulation 27(2) of the NMW Regulations 1999 applied.
The risk for employers is if they get it wrong and do not pay at least the NMW rate for all the hours worked.
The NMW is enforced by HMRC who can ask the employer to produce records to determine entitlement to the NMW and what was paid to the workers. It will be presumed that the worker has not been paid the NMW unless the employer can prove it has. The reverse burden of proof applies and it is for the employer to prove that the workers were not entitled to the NMW. HMRC can issue a notice of underpayment requiring the employer to pay the arrears at the current NMW rate, impose a penalty name and shame employers and commence criminal proceedings.
It was recognised that sleep in shifts in the social care sector was causing difficulties to employers because of the potential accumulation of arrears and the penalties that could be imposed. So penalties were waived in the social care sector for underpayment of workers for “sleep in” shifts were suspended. In November 2017 financial penalties for failure to pay NMW to sleep in staff was reinstated subject to a new Social Care Compliance Scheme which gives employers a year to self-identify what they owe to workers and a further three months to pay the arrears.
If you would like to discuss "on call" hours or any other similar employment issue, please do not hesitate to contace me on 01206 217347 or alternativley you can email me at email@example.com