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EAT produces guidance on how to determine pay for sleep-in shifts

The EAT has considered whether night-shift workers who sleep in, in order to carry out duties if required, engage in "time work" for the duration of the shift, or whether they are only entitled to the national minimum wage (NMW) when they are awake and carrying out duties.

Deciding three joined appeals, the EAT held that a multifactorial evaluation is appropriate to determine whether a worker is working merely by being present at the workplace (even if asleep), or whether they are "available and required to be available at or near their place of work for the purposes of working" and therefore subject to the special rules in regulation 32 of the National Minimum Wage Regulations 2015.

The EAT set out four potentially relevant factors to be considered:

1. The employer's particular purpose in engaging the worker. For example, a regulatory requirement to have someone present at all times might indicate that the worker is working simply by being present.

2. 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.

3. The degree of responsibility undertaken by the worker and the types of activities that they may be called upon to perform.

4. The immediacy of the requirement to provide services if something untoward occurs or an emergency arises may also be relevant.

The EAT emphasised that each case is likely to turn on its own facts. In one of the cases under appeal, a care worker supporting vulnerable adults worked a sleep-in shift during which no specific tasks were allocated, but there was a continuing obligation to remain at her post and keep an ear out in case she was needed to deal with any incidents. The EAT upheld an employment tribunal's finding that the carer was performing time work throughout her shift. Crucially, the carer was required to be present and would have been disciplined if she left her post, putting her employer in breach of its legal obligations.

In another case, the claimants were on-site wardens at a caravan park where they lived. While on call at night, they were paid a flat rate per call-out. An employment tribunal found that they were only doing time work while actually working, because they were at home during periods when they were not carrying out duties. The EAT allowed the employer’s appeal, finding that the tribunal had not considered all the factors set out above.

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