12.05.17 Are you entitled to NMW if you spend your “working” time asleep?

A recent tribunal case has found that a “sleep-in” night worker was entitled to the National Minimum Wage (‘NMW’) for the time spent on duty, rather than just an allowance. Focus Care Agency Ltd v Roberts was heard at the Employment Appeal Tribunal in conjunction with two other cases which raise the same issue of whether sleeping during on-call time counts as working time for the purposes of NMW regulations, Frudd v Partington and Mencap v Tomlinson-Blake.  

In the Focus Care case, Mr Brian Roberts was a care worker who paid hourly for an agency which provides a “supported living service” to its service users. The local council either funded the service or the clients paid themselves dependent upon their individual circumstances. During the night shifts, two care workers were sometimes required. One worker would be doing a “waking” night shift therefore, they were the one primarily responsible for the service user and is required to be awake during the entirety of the shift. The second worker would be doing a “sleep-in” and is given sleeping facilities. They would only be required to aid the first worker should an emergency occur. The care worker who was required to remain awake during the shift is paid at the contracted rate of pay. The sleeping care worker would be paid at an allowance of £25 per night.

Roberts’ had a varying shift pattern which included day, evening, weekend, and sleep-in duties. Although the  contract did not specify that he was required to remain on the service user’s property for the entirely of the sleep-in shift, it was understood by both employer and employee, that there was an expectation that they would remain on the premises for the whole duration of the shift.

Following advice Mr Robert sought on his dismissal from the company, he was made aware of his rights regarding his entitlement to NMW for the sleep-in shifts and made a subsequent tribunal claim that the allowance he received for the sleep-in shift was in fact an unlawful deduction from wages and also a breach of contract. The Employment Tribunal (‘ET’) found that there was nothing in Mr Robert’s contract to state that this shift would be paid at a lower rate than his other work, and no indication that he had waived this entitlement during his employment which was unsurprising considering Mr Robert’s was clearly unaware of his entitlement to the NMW for that working time.

The Employment Appeal Tribunal (EAT) upheld the decision when Focus Care Agency Ltd appealed concluding that the contract had a specific clause which stated that the provision of the contract replaced any former written or oral arrangement between employer and employee. This meant that when Mr Robert’s was told during his interview that the sleep-in night shift would be paid at an allowance rather than contracted pay or NMW, it was over-ruled by the contract which did not state anything about an allowance or a lower rate and the only provision in relation to pay for additional hours was in relation to overtime. The EAT concluded that this meant sleep-in duty was eligible for the NMW.

To read the full EAT case, click here.

Read the blog Aspire posted on this topic, here.

Aspire Comment

Whilst this case is useful in the clarification it provides employers in relation to NMW and when they are expected to pay it, it is also important to note that the factors which resulted in the decision made are entirely based upon the circumstances discussed. Therefore, the decision in favour of Mr Robert’s cannot be determinative of all cases which raise the same issue as they will all be dependent upon the individual circumstances, the contractual documentation and the relevant facts.

There are many factors to consider when drafting contracts, in order to avoid the risk of failing to pay NMW or a Tribunal claim, therefore it is important to ensure that all types of contracts are written accurately to ensure they reflect the reality of the situation and comply with all statutory obligations.

If you think you need help in regard to your contractual documentation, please give Aspire a call to discuss how we can help on 0121 445 6178.