The Employment Appeal Tribunal (EAT) have handed down a judgment which aims to assist employers in working out whether they should pay the minimum wage to workers for time spent sleeping. The case of Focus Care Agency v Roberts is essential reading for those who have to make that decision and it applies particularly in the care and security sectors. Paragraph 44 sets down four considerations.
It is important to state that the EAT have said that each case will turn on its own merits. The exact facts therefore will be important. However, the four considerations are as follows:
- The employee’s or worker’s purpose. So, if a regulation or a contract which governs the employer requires that the employer has a person present all night, then the facts lean toward that worker being entitled to the minimum wage for all the time that they are asleep on site.
- How restricted is the worker? Does the worker need to remain on site all of the time, or can they pop out to the pub or the cinema for example. If it’s the former, then it leans toward attracting the minimum wage.
- Degree of responsibility. How much responsibility does the worker have? For example, are they simply to be present to call the fire brigade in the event of a fire, or are they there to be called upon themselves to do particular duties. The latter indicates that the minimum wage is due.
- Is it the worker themselves who determines when or whether to take steps if needed (in which case the minimum wage may be due) or is the worker just woken by someone else if that someone feels they are needed?
The one certainty from this guidance is that more cases will need to be heard before we have a really clear idea of a concrete test. However, a few worked examples below may be helpful.
A lorry driver sleeping in his cab overnight
There is no legal or contractual burden to have them in the cab and they can pop out to the pub for example. In the event of an emergency or incident, the driver is not required to even wake up, so the minimum wage is almost certainly not due for sleeping time.
A care worker sleeping at a user’s accommodation to help the user in the night go to the toilet, or in case of difficulty breathing, for example
The worker cannot go out and the employer is contracted to have someone present. They have a great deal of responsibility in an emergency. The minimum wage is almost certainly due for sleeping time.
A security guard at a building site who is free to sleep once the gates are locked
The security guard cannot leave the site and is fulfilling the employer’s contractual obligation. If CCTV shows someone cutting the fence on the other side of the site, the guard would decide on the action, and even if he called the police himself, he would probably decide to illuminate the site and or record the activity. The minimum wage would apply.
Care worker who is a second line of defence in the event of an emergency
He can sleep on site but is only woken by a primary care worker if needed. He can pop to the shops and get newspapers, but only for short periods. According to the tests above, the legal position remains unclear.
The judgment itself can be found here: http://www.bailii.org/uk/cases/UKEAT/2017/0143_16_2104.html