Whether or not a worker who is on call at their employer’s premises but who is allowed to sleep when their services are not required is entitled to be paid the National Minimum Wage (NMW) for the entirety of their shift is a highly fact-sensitive area of employment law that is of particular significance to the care sector, in which so-called ‘sleep-in’ shifts are common.

It might be thought that someone who is permitted to sleep on the job would not be entitled to be paid the NMW unless they are actually called upon to perform some work, but that is by no means always the case.

The Employment Appeal Tribunal (EAT) recently heard three conjoined appeals on this issue, two of them concerning care workers, and has given further guidance on the correct approach to take (Focus Care Agency Limited v Roberts).

In deciding the appeals, the EAT noted that a failure to pay the NMW when required can lead to penalties and even criminal sanctions against employers. There is, therefore, a pressing need for certainty in the law.

Recognising the difficulty of the issue, the EAT commented that there is a clear dichotomy between those cases where an employee is working merely by being present at an employer’s premises, whether or not provided with sleeping accommodation, and those where an employee is provided with sleeping accommodation and is simply on call.

There is no single key with which to unlock the issue of whether the NMW is payable during hours spent asleep. The test is a multifactorial one that requires an assessment of relevant factors, including an employer’s purpose in engaging a particular worker, restrictions on a worker’s personal activities during hours spent on call, the degree of responsibility undertaken and the immediacy of the requirement to provide services.

The EAT acknowledged that such an approach means that no one factor can be treated as determinative and does not provide as much clarity as might be desired. However, there is no definitive test and each case must be decided on its own facts.

One of the appeals was brought by a couple who lived on site and worked as wardens of a caravan park. The Employment Tribunal (ET) had ruled that they were at home and so were only entitled to the NMW whilst actually working. Their appeal was allowed as the ET had failed to make express findings on all aspects of the evidence including, importantly, the extent of the claimants’ obligation to remain at the caravan site throughout the shift. The matter was remitted to a fresh ET for reconsideration.

The other two appeals, each brought by an employer in the care sector, were dismissed. The first concerned a domiciliary care support worker who looked after two clients in their own homes, sometimes working a day shift and sometimes a sleep-in night shift. When working nights, she was not allocated specific tasks and was allowed to sleep, but was required to remain in the house ready to respond if and when needed. The EAT upheld the ET’s decision that she was entitled to be paid the NMW for the entirety of her night shift. Her employer was under a regulatory burden to provide such care and was obliged to do so under its contract with the council.

The second case was brought by a sleep-in carer paid £25 per night for providing supported living services alongside a waking night worker who was paid the NMW. As the claimant’s contract stated the he should be paid the same as a waking night worker, the ET and the EAT upheld his claim for unlawful deductions from wages. However, the EAT commented that had the issue not been resolved in that way and it been necessary to determine whether or not he was entitled to be paid the NMW for the entirety of his shift, the appeal would have been upheld as the ET had failed to carry out the multifactorial evaluation necessary to reach a decision in such cases. Rather, it appeared to have proceeded on the assumption that the requirement to be present throughout the sleep-in shift was determinative, which is not the case.