You snooze you (may) lose: Guidance on “on-call” shifts for national minimum wage purposes

There have been a number of cases looking at whether "on-call" time is working time. Cases on "on-call" time and whether the national minimum wage applies to that time are more scarce. Recently however the EAT considered three joined ET appeals on this point. The three joined cases were Focus Case Agency Ltd v Roberts, Frudd v The Partington Group Ltd and Royal Mencap Society v Tomlinson-Blake.

In the Focus case, the Claimant had to do shifts where she slept in at the care home where she worked over night. She was the only member of staff to tend to patients’ needs. The Tribunal held that as she was constantly on call (as she would have responded to a patient need) she was entitled to the national minimum wage.

In the Frudd case, the Claimants lived on site at the Respondent’s caravan park and were only paid for call outs that occurred during the night. The Tribunal held that the Claimants were at home and therefore only entitled to the national minimum wage whilst taking a call and working.

In the Royal Mencap case, the Claimant could sleep during her shift but importantly she had to keep ‘a listening ear’ out for any residents that needed help during the night.  She could not leave site. The Tribunal found that her time at work (even if sleeping) should be paid at the national minimum wage rate.

In all of the cases, the unsuccessful parties appealed. The EAT considered collectively their appeals surrounding the issues around 'sleep-in' shifts. The EAT confirmed that:

"A multifactorial evaluation is required. No single factor is determinative and the relevance and weight of particular factors will vary with and depend on the context and circumstances of the particular case."

Whilst the guidance refers back to the context and the facts of each case it does provide some assistance as to how this ‘multifactorial’ evaluation is to be applied when considering whether the individual is "working" for the purposes of the national minimum wage during a sleep-in period. The EAT guidance stated that Tribunals should consider:

1. The employer's particular purpose in engaging the worker. For example, whether the employer is subject to a regulatory or contractual requirement to have someone present during the particular period the worker is engaged to be present.
   
   
2. The extent to which a 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. For example, a distinction can be made between the limited degree of responsibility in sleeping at the premises to call out the emergency services in case of a fire (categorised as 'not working'), and a night carer that sleeps at a care home where responsibility is placed on the worker in relation to duties that might have to be performed during the night (categorised as 'working’).
   
   
4. The immediacy of the requirement to provide services if something untoward occurs or an emergency arises. The critical point here is whether the worker is the person who decides whether to intervene (categorised as 'working'), or whether the worker is woken as and when needed by another worker with immediate responsibility for intervening (categorised as ‘not working').

What does this mean for you or your business?

If a situation like the above cases arise in your workplace, you will need to carefully consider your employees' employment contracts together with the nature of their engagement and the work they are required to carry out. For example, depending on the facts, it may be relevant to consider whether the contract provides for pay to be calculated by reference to a shift or to a period 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. A particular level of activity is not required.

What do you need to be doing now?

Employers need to review their pay practices for "sleep-in shifts" as getting it wrong has potential civil and criminal penalties as well significant public relations implications. The possible ramifications for getting it wrong include:

• Unlawful deduction of wages and/or breach of contract claims by individual workers.
  
  
• HMRC enforcement notices and financial penalties of up to £20,000 per employee.
  
  
• Criminal sanctions for serious cases.
  
  
• “Naming and Shaming” by the Department for Business, Energy and Industrial Strategy on the government’s website for breach of National Minimum Wage Regulations.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.