For some employers, the notion of an employee ‘sleeping on the job’ makes their blood run cold and conjures up images of a swift, and possibly unsympathetic, disciplinary process. For many employers, especially in the care industry, sleepover shifts are commonplace and the blood of those employers has been running cold at the possible financial consequences of the much anticipated decision of the Court of Appeal in the joined cases of Royal Mencap Society v Tomlinson-Blake and John Shannon v Jakishan and Prithee Rampersad (t/a Clifton House Residential Home).
What was being considered?
The issue considered by the Court of Appeal was how time spent by a worker on a “sleepover shift” should be treated for national minimum wage (‘NMW’) purposes given that the worker could be asleep for most, if not all, of that shift. By sleepover shift we are referring to where a worker is contractually obliged to spend the night at or near their workplace on the basis they are expected (this is a key term) to sleep for all or most of the period but may be woken if required to undertake some specific activity). Often in these situations a care provider will pay a modest lump sum payment to cover the sleepover shift as a whole (notably less than NMW for the whole period) and will then pay additional sums for any time spent awake and working. The prospect of a decision that every hour “spent at work” should be treated as working time for NMW purposes was unsettling for many employers in the care industry. To put this issue into context, the care industry was said to be facing back pay claims with a value in the region of £400million!
What was the decision?
Thankfully, the Court of Appeal has ruled that the NMW might not apply to every hour “at work” during a sleepover shift and has provided some much needed clarity by drawing a clear distinction between where a worker is expected to sleep and where a worker has permission to sleep. It is a fundamental aspect of many sleepover shifts that the worker will be asleep during the shift unless they are called upon to perform their duties. Under the Court of Appeal decision, in this scenario the worker is only entitled to NMW during periods when they have actually been woken for work. At this point the clock starts ticking for NMW purposes for as long as they are fulfilling their duties. That clock is not ticking whilst the worker is asleep.
Where there is permission, rather than an expectation, to sleep, for example, where the worker can sleep during slack time (but there is not an expectation they would do so) they are treated as working for the entire shift for NMW purposes, regardless of whether they are asleep. An overarching payment for this type of shift would therefore be a breach of NMW legislation unless it was equal to, or greater, than the appropriate NMW rate for every hour of the shift. In British Nursing Association v Inland Revenue [2002], the nurses covering the night shift of a 24-hour emergency nurse booking service could sleep between calls but were still required to answer the phone within four rings and be available to answer calls throughout their shift. The same work conducted during the day was unquestionably all working time, even if there was a lull in calls, and so the same principle was held to apply to the night work. However, the Court of Appeal distinguished that situation from the one in the Mencap case on the basis that there was an expectation to sleep (Mencap) rather than just the option to sleep during quiet periods (British Nursing Association).
What needs to be done now?
Following the helpful distinction between the expectation of sleep and the mere permission to sleep, employers should ensure that their employment contracts properly record what the actual expectations are. If a worker is going to undertake a sleepover shift where they are expected to sleep unless called upon to perform their duties then this should be stipulated in the contract. This will allow the employer to limit the “working time” for NMW purposes to be limited to when the worker is actually awake and working.
What about unmeasured time?
In reaching the above decision the Court of Appeal drew a distinction between “actual work” and “availability for work” in line with the 2015 Working Time Regulations. Unlike with time workers and salaried workers the Regulations do not contain “availability to work” provisions for unmeasured workers.
In these situations care providers will often consider the duties that an unmeasured worker will likely have to carry out and calculate a rough daily average of how long they think those duties will take to complete. The unmeasured worker is then paid on that basis and this is permissible for NMW purposes provided the number of hours is realistic. These arrangements are unaffected by the above decision.
Chris Morse is a Chartered Legal Executive and member of the HRExpress team. For more information on any HR and employment law issues please contact Chris on 01872 265100 or email employment@stephens-scown.co.uk