The three appeals to the Employment Appeal Tribunal in cases including Focus Care Agency Ltd v Roberts, UKEAT/0143/16/DM, consider the proper approach to the question whether employees who “sleep-in” in order to carry out duties if required engage in “time-work” for the full duration of the night shift, or whether they are entitled to the National Minimum Wage, under the National Minimum Wage Act 1998 and the National Minimum Wage Regulations 1999 and 2015, only when they are awake and carrying out relevant duties.
The EAT rules that no single factor is determinative and that both the relevance and the weight of particular factors will vary and will depend on the context and circumstances of the particular case. A multifactorial evaluation is necessarily required. As the EAT observed, the point is particularly significant in the care sector, where “sleep-in” duties commonly arise, and where the desire for certainty is particularly acute on account of penalties and potential criminal sanctions for breach. Simler P said that much as she could see how desirable it would be for the sake of clarity and certainty, she did not consider that there is a bright line or single key with which to unlock the words of the Regulations in every case. This is, she said, a particularly fact sensitive area. Analogies and illustrations are not necessarily useful. Simler P rejected a binary approach. It is not the case that, provided that the employee is required or obliged to be at their place of work, mere presence there will necessarily be working. In some cases, even when a worker is obliged to be present, their presence may not amount to working. There are cases on either side of the line.
The crucial question is how the multifactorial evaluation is to be applied. Simler P says that the proper approach is to start by considering whether the individual is working during the period for which he or she claims the minimum wage. Work is to be determined on a realistic appraisal of the circumstances in the light of the contract and the context in which it is made. The contract must be considered together with the nature of the engagement and the work to be carried out.
ETs should consider whether the contract provides for the period in question to be part of the employee’s working hours as a matter of construction and in the light of the factual matrix. Depending on the facts as disclosed by relevant and admissible material, it may be relevant to consider whether the contract (written and/or oral) provides for pay to be calculated by reference to a shift, or by reference to something else, and, if so, to what; or to whether an identifiable period is specified during which work is to be done.
The fact that an employee has little or nothing to do during certain hours does not mean that he or she is not working. An employee can be working even if they are simply required to deal with something untoward that might arise, but are otherwise entitled to sleep.
Simler P identifies the following relevant factors in determining whether a person is working by being present: (1) the employer’s particular purpose in engaging the worker; (2) the extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer; (3) the degree of responsibility undertaken by the worker; and (4) the immediacy of the requirement to provide services if something untoward occurs or an emergency arises.