Can employees claim wages if they sleep at work?

Posted on May 9, 2017

This article is not about those who dose off when they are supposed to be working! Rather it reviews the circumstances in which those who “sleep-in [at their work premises]” during their working hours are entitled to be paid the minimum wage when sleeping.

The Employment Appeals Tribunal (EAT) recently considered* the issue of whether employees who “sleep-in” in order to carry out duties (if required):

engage in “time work” for the full duration of their night shift - and are therefore entitled to be paid for the full period); or whether
they are only entitled to the national minimum wage when they are awake and carrying out relevant duties.

Consider the example of an employee who is required to be in work between 11pm and 8am. They show up for work at 11pm but in the event are not needed between 3am and 5am. If they have slept in that two hour period between 3 and 5am, are they entitled to 9 hours pay or 7? In other words, are they engaging in “time work” merely by being present in the workplace even if asleep or to justify payment do they have to be actually working?

The laws that deal with this issue are the National Minimum Wage Act 1998 (”the Act”) and the Regulations that were made under the Act (the National Minimum Wage Regulations 1999 and 2015 (“the 1999 or 2015 Regulations”). The Act and the Regulations are not easy to interpret and apply and in their recent decisions*, the EAT confirmed that in every case, several factors must be evaluated to reach the answer to the question of whether pay is due to the employee. The relevance and weight to be attached to those factors will vary with and depend on the context and circumstances of the particular case.

The EAT clarified the position as follows: It would be desirable to have a single set of rules to apply the law but the interpretation of the Act and the Regulations is dependant on the facts in every case.

An individual can be “working merely by being present” even if they have “little or nothing to do during certain hours” and “work is not to be equated with any particular level of activity”... “Moreover, an individual may be working merely by being present if he or she is simply required to deal with anything untoward that might arise in the course of the shift but is otherwise entitled to sleep.”

In considering the facts of each case there are four factors to consider:

the employer’s particular purpose in engaging the worker. This might have a bearing on what the worker might be expected or required to do and might indicate the extent to which the worker is working by simply “being present”.
The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer;
the degree of responsibility undertaken by the worker;
how quickly the employee is required to provide services if something untoward occurs or an emergency arises. (Is he/she the person who decides whether to intervene and then intervenes when necessary, or is he/she woken as and when needed by another worker?)

Some guidance for employers

As with all dealings with employees, it is far better to set out what you expect of them in a written employment contract. The payment terms should clearly set out what payment they can expect and for what. Clear terms will cut down the risk of future arguments and help you to avoid expensive tribunal hearings which eat into your management time.

*Focus Care Agency Ltd v Roberts UKEAT/0143/16; Frudd and another v The Partington Group Ltd UKEAT/0244/16; Royal Mencap Society v Tomlinson-Blake UKEAT/0290/16, 21 April 2017 (Bailii).

To discuss any issue relating to the employee pay and the minimum wage or to review your employment contracts, contact Susan Mayall on 0161 684 6948 or enquiries@pearsonlegal.co.uk

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

This blog was posted some time ago and its contents may now be out of date. For the latest legal position relating to these issues, get in touch with the author - or make an enquiry now.