Is it possible to get paid whilst being asleep on the job?

Yes.

Case law in this area highlights the complexity of the Regulations when considering a worker who is required to ‘sleep on the job’.  Further, it appears that each case will be decided on its own facts, including the wording of the contract and the context within which it is made.  If employers fail to meet NMW obligations, they will be at risk of ET claims, civil penalties; criminal sanctions and being publicly named and shamed by HMRC.

The Honourable Mrs. Justice Simler DBE (President) (sitting alone) recently looked at this issue the hearing together of three appeals:   Focus Care Agency Ltd –and- Roberts UKEAT/0143/16/DM; Frudd –and- The Partington Group UKEAT/0244/16/DM; Royal Mencap Society –and-Tomlinson-Blake UKEAT/0290/16/DM

The Appeals related to 3-cases where the question at the heart of the appeals was whether employees who sleep-in in order to carry out duties if required, engage in ‘time work’ for the full duration of the sleep-in shift or whether they are working for national minimum wage payment purposes only when they are awake to carry out any relevant duties. 2-appeals were dismissed and the other, that of Frudd, was allowed.

Despite recognising the need for clarity on this issue, the Mrs. Justice Simler DBE (at para 37) confirmed that there is no ‘bright line principle’ that can be applied, stating:

“I do not consider that Walton* lays down any bright line principle. It does not say that there cannot be cases where simply being present is working.  Nor did the Court of Appeal consider that British Nursing Association** and Scottbridge*** were wrongly decided: those cases were found to be distinguishable or not analogous.  Instead Aldous LJ held that the correct approach is to look at all the facts including the type of work that is involved and then to ascertain whether the worker is paid by reference to the time for which the worker works or by reference to something else.  The answer must depend upon the facts of the particular case and analogies and illustrations are not necessarily useful”.

In her Summary, Mrs. Justice Simler DBE stated that:

“[…].  A multifactorial evaluation is required. No single factor is determinative and the relevance and weight of particular factors will vary with and depend on the context and circumstances of the particular case […]”.

The EAT also identified the following potentially relevant factors in determining whether a person is ‘working’ by being present at the work place:

1. the employer’s particular purpose in engaging the worker to the extent that it informs what the worker might be expected or required to do;
2. the extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer;
3. the degree of responsibility undertaken by the worker; and
4. the immediacy of the requirement to provide services if something untoward occurs or an emergency arises.

NB

It would seem that the law in this area has yet to be resolved, and the question of flat sleep-in rates is yet to be grappled with.   This Judgment does not provide a straightforward test or answer as to the question of whether or not sleep-ins should be considered for NMW Regulation purposes or not.  It seems that each potential respondent should consider its own circumstances and potential risk very carefully.

Employers should be cautious, and consider taking steps such as:

• a review of all its contracts, assessing therein the risk that workers are not being paid the NMW, and identify key areas of exposure;
• apply the ‘multifactorial’ guidelines laid down by the EAT to assess the level of potential risk to the organisation and determine if there are any changes in its approach that may be made to reduce risk.

The Royal Mencap Society – having been found against by the EAT – was in the last few days granted permission to appeal to the Court of Appeal, so keep an eye on this for, one hopes clarification on the law in this area.

Cases referred to above: full citation

*Walton –and- Independent Living Organisation [2003] ICR 688 (CA);

** British Nursing Association –and- Inland Revenue [2003] ICR 19 (CA);

***Scottbridge Construction Ltd –and- Wright [2003] IRLR 21 (Inner House of the Court of Session)

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