19th May 2017

Working Time: Are workers entitled to pay while on call but asleep?

At a glance

For some time the legal position has been unclear in respect of workers who sleep on the premises and whether or not hours spent asleep count as working time. A recent Employment Appeal Tribunal decision has considered the issue further and has set down useful guidelines for employers. Will Walsh from RB’s Employment Team explains these further.

The Employment Appeal Tribunal has considered whether night-shift workers who sleep in, in order to carry out duties if required, should have all of that time classified as working time and receive at least the national minimum wage for all of those hours. In other words, is an individual classified as working merely by being present at the workplace, even if they are asleep?

The EAT concluded that the issue will have to be decided on a case by case basis, but set out the four key factors appropriate to determine that issue.

The first is the employer’s particular purpose for engaging the worker.  For example, a legal requirement that there must be someone present on site at all time would indicate that the person is working simply by being present.  On the other hand, if their presence at the workplace overnight was largely for convenience, the outcome is likely to be different.

The second factor is the extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer. This may include considering whether the worker could be disciplined if they left their post during the shift to do something else.

The third factor is the degree of responsibility undertaken by the worker and the types of activities they may be called upon to perform.  For example if a worker sleeps at the premises purely to call out the emergency services in the event of a break-in or fire, their level of responsibility is relatively low and therefore it is less likely that their presence in itself would be deemed to be work. On the other hand, a worker who sleeps in a home for the disabled, who has heavier personal responsibilities in relation to any duties they may have to perform during the night, is more likely to be deemed to be working.

The final factor is the immediacy of the requirement to provide services if something untoward occurs or an emergency arises.  Therefore there will be a difference between a worker who is the person who decides whether to intervene and then takes action themselves when necessary, and a worker who is woken to assist as and when needed by another person where that other person has immediate responsibility for intervening.

What does this mean for employers?

The EAT decision gives more certainty to employers who currently have workers who sleep on the premises or who are on call during the night.  Those employers should look at the arrangements in place for those individuals carefully, in light of the four determining factors outlined, and ensure that workers who meet the relevant criteria are paid accordingly.  Conversely, employers looking to avoid the need to pay workers for all hours during the night can use the guidance to ensure that duties and responsibilities are adapted for their workers accordingly, so that their mere presence at the workplace will not be deemed to be actual work.

If you would like to understand more about the implications of this case and discuss how it may apply to your workers, please contact Will Walsh by emailing Will or by calling him on +44(0)1293 558540.

This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this document.

Get in touch with Will Walsh