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The issue of whether a worker is to be regarded as carrying out “time work” and therefore entitled to the National Minimum wage  (“NMW”) for the full duration of their shift (even if they may be sleeping during this time) requires multiple factors to  be  taken into account.   If the worker is not carrying out such “time work” and is merely to be regarded as “available and required to be available … for the purposes of working”, then they will only be entitled to the NMW in relation to time when they are awake for the purpose of carrying out relevant duties.

 

In Focus Care Agency Ltd v Roberts, the EAT decided that there is no one factor that can be used to determine whether an employee is to be regarded as working merely by being present at the work  location. Instead, the following points should be considered collectively:

• The reason the employee is required to stay overnight; for example, an individual who was merely required to act if there were problems during the night may be regarded as only ‘available’ for work during such periods whereas an individual required to spend the night at the place of work so that the employer complies with contractual or regulatory obligations is more likely to be classed as ‘working’ even while they are sleeping.

• To what extent the employee is restricted; for example are they permitted to leave the property or would they be disciplined for this?

• The degree of responsibility undertaken by the worker; for example,  compare the position of  a care worker required to help individuals in the night if problems arise with that of a pub manager sleeping above the pub who may only be required to call the police if they hear a break in, rather than dealing with this themselves.

• Whether an immediate response is necessary if something occurs during the night.

When determining whether a worker should be paid NMW for time when they may be sleeping an employer should take account of each of the factors identified.  It should also be borne in mind that it is not determinative whether an individual has little or nothing to do during the time they are required to spend at work. As the EAT pointed out, an employee at a call centre may have periods where there are few or no calls coming through, but they are still entitled to be paid for all the time they spend there. The EAT stated that unfortunately there cannot be a “bright line” distinction that whenever a worker is sleeping or allowed to sleep at work that period cannot be time work for NMW purposes and each case will depend on the particular facts.

It is important to get it right. Employers who fail to comply with national minimum wage legislation can be subject to enforcement action by HMRC, and may be liable to pay a penalty of up to 200% of the underpayment. If you have any queries or require advice on national minimum wage issues, please do not hesitate to contact a member of the Stronachs Employment Team.

Eric Gilligan, Partner and Annika Neukirch, Solicitor

Chambers UK 2106

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