Are workers entitled to the national minimum wage when 'on-call', or sleeping, at work? In a comprehensive decision, the EAT decides 'it depends'.
In three cases heard at the same time (with the lead case being Focus Care Agency v Roberts), Simler P. considered whether three tribunals had correctly decided whether 'sleep-in' time counted as 'time work' for the purpose of the National Minimum Wage Regulations. Although conscious of the importance of this issue for employers and employees (in no small part because of the risk of criminal sanctions if the employer gets it wrong), the EAT was unable to give a straight 'yes' or 'no' answer. Indeed, it disapproved of the approach sometimes adopted of cases where a worker is working merely by being at the premises, and cases where the worker is provided with accommodation and is simply on-call.
Rather, it held, a multi-factorial approach is required - giving considerable weight to the facts of any individual case and thus considerable leeway to an individual employment tribunal to decide. The four factors are set out at paragraph 44 of the judgment (they are too long to reproduce in this brief summary).
If you advise employers (or are an employer) which engages workers who sleep at night, read paragraph 44. The remainder of the decision shows how the principles can be applied to different factual situations.
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