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When does sleep count as work?

Posted: 9th June 2017

Charities must deal with issues around National Minimum Wage and on-call workers, writes Ben Doherty, Head of Employment at Lindsays

A recent legal case has spotlighted a vexed question around National Minimum Wage (NMW) and the obligations of charities: when does sleep count as work?

Like so many issues around NMW, the regulations seem to read clearly, but in practice employers face a host of pitfalls. And for social care charities, which often require to have workers on call overnight, sleep has been the cause of much legal uncertainty and insomnia.

This latest case highlights the importance of getting to grips with – and getting advice on – this area. It also reinforces the need for employment contracts to be completely clear on what duties workers have when they are on call or asleep, and to reflect the reality of each situation. If a worker’s duties change, contracts may need to be updated.

The details of this particular case (Focus Care Agency v Roberts) will strike a chord with charities of all sizes, which is why it’s so important. The charity in question ran supported living facilities for vulnerable adults. At night, it usually had two workers available – one carrying out duties and the other doing a sleep shift, just in case they were needed to help out.

The ‘sleep-in’ workers were paid a flat rate of £25 per shift, rather than receiving hourly pay. This was on the basis they were usually asleep, and the Minimum Wage Regulations provide that ‘time work’ attracting the NMW only applies when workers are actually awake and available to work.

It may sound cut and dried, but it’s not. The worker argued he was entitled to hourly pay since he was actually doing ‘time work’ even when sleeping. And he won.

On a typical eight-hour shift and with minimum wage now up to £7.50 per hour, we’re looking in such situations at a potential additional wage liability per worker per night of £35. So the issue carries huge financial significance for both social care employers and staff.

However, while the case has starkly highlighted the issue, the judge also emphasised that each case will depend on its own circumstances and facts. Factors that came into play in deciding whether sleeping time is working time included:

• Would workers be disciplined if they left the premises during the shift, or were they free to come and go?
• How much responsibility was placed on sleep-in workers during the shift? For example, was it likely they may be needed to perform personal care for clients (thereby having a greater burden of responsibility) or less likely, such as only being required to act in the event of an emergency, such as a break-in?
• How immediately did sleep-in workers have to be available? Would they need to be woken by another worker or have to make the decision to intervene themselves?

These issues will clearly vary from situation to situation. There are still no easy answers to the question of when sleep constitutes work, but it should be clearer to charities that there’s an issue here, and one they now have to address.

They should also be aware this is by no means the only pressing issue they must address around NMW, there are wider employment law issues such as working time or transfers of contracts. The consequences of blundering on these points are not just limited to legal costs and possible fines, but could also lead to wider reputational, recruitment and sustainability issues.

It’s safe to say that no one comes into the social care sector because they want to grapple with employment law dilemmas, but it’s an area that really can’t be avoided.

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