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National minimum wage and sleeping on the job
It is often difficult to determine when an employee/worker who “sleeps in” when carrying out their duties, are “working” for the purposes of being paid the National Minimum Wage (NMW).
Are they only entitled to be paid for the time that they are awake and carrying out any duties?
For example, where a worker is allowed to sleep in whilst on duty and is only obliged to get up should a requirement or emergency arise, should they be paid for the whole shift or just for the time that they are up and actually carrying out their duties?
In deciding a number of cases on this point, the Employment Appeal Tribunal (EAT) stated that this is essentially a question of fact, that an Employment Tribunal must carry out a multifactorial evaluation and should consider the following:
What is the employer’s particular purpose of engaging the worker; for example, is there a regulatory requirement to have somebody present and, if so, that might indicate that the worker is working simply by being present;
The tribunal should examine the extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer. For example, the tribunal could consider whether the worker could be disciplined if they left their post during the shift.
The degree of responsibility that the worker has and what they may be called upon to do during the shift;
The immediacy of the requirement to provide services if something happens or an emergency arises.
The EAT emphasised that each case is likely to turn on its own facts. In one of the cases, the EAT found that a worker looking after vulnerable adults where no specific tasks had to be done during that shift was entitled to be paid the NMW for all the time she was on shift because she had an obligation to remain at her post and be ready to deal with any incidents.
In another case, onsite wardens at a caravan park were paid a flat rate per call out; the Employment Tribunal had found that they were only entitled to be paid whilst they were actually working because they were “at home” during the periods when they were not carrying out their duties. However, the EAT held this case had been wrongly decided.
Employers engaging workers on a “sleep in” or “on call” basis must take the four factors above into consideration when deciding whether the workers should be paid the NMW for the full shift or not.
Where the NMW has not been paid, HMRC can investigate and impose penalties and the worker/employee can make a claim in the Employment Tribunal.
If you would like to discuss this matter, please do not hesitate to contact our employment specialist Reggie Lloyd at our Colchester office on 01206 217347 or email firstname.lastname@example.org