Is time spent asleep during a “sleep-in” shift working or is an employee working simply by being present on an employer’s premises during a "sleep-in" shift?
The EAT recently considered the thorny issue of whether employees who sleep-in in order to carry out duties if required engage in working time for the full duration of the night shift or whether they are only deemed working when they are awake and carrying out relevant duties. The EAT heard 3 appeals concurrently, the lead case being Focus Care Agency v Roberts. Whilst not legally binding, this decision is of persuasive value and is likely to be of significant interest to employers, employees and Trade Unions in Northern Ireland given the hundreds of claims that are currently lodged and awaiting determination before the Industrial Tribunal in Belfast.
President Simler DBE found that no single factor is determinative and the weight each factor carries (if any) will vary according to the facts of the particular case.
Royal Mencap Society v Tomlinson-Blake was one of the appeals before the EAT. The Claimant is a care support worker who provides care and support to two men with autism and substantial learning disabilities making them vulnerable adults within the Council’s responsibility. The Council carried out a care and needs assessment for them, leading to a care and support plan which the Council contracted out to Mencap to deliver. The two men live in a privately owned property and their care and support plan, directed at enabling them to lead as independent a life as possible, requires 24-hour support. The support is provided by a 24-hour team of care support workers in their home at all times.
The Claimant’s usual work pattern involves working a dayshift at the men’s house either from 10am to 10pm or 3pm to 10pm. She would then work the following morning shift, either from 7am to 10am or from 7am to 4pm. Those hours were part of her salaried hours and she received appropriate remuneration in relation to them. In addition, the Claimant was required to carry out a sleeping shift between 10pm and 7am for which she received a flat rate of £22.35 together with one hour’s pay of £6.70 making a total payment for that nine hour sleep-in of £29.05.
No specific tasks are allocated to the Claimant to perform during that shift, but she is obliged to remain at the house throughout this shift and to keep a listening ear out during the night in case her support is needed. She is expected to intervene where necessary to deal with incidents that might require her intervention (for example if one of the men is unwell or distressed) or to respond to requests for help; and she is obviously expected to respond to and deal with emergencies that might arise.
The Tribunal found that there were only six occasions over the preceding 16 months when the Claimant had to get up to intervene during the sleep-in hours. If the Claimant is required to provide care for longer than an hour, she is entitled to additional payments.
It was the Claimant’s case that she works simply by being present in the house throughout her sleep-in shift whether or not she is awake. The whole sleep-in shift should have been treated as “time work” within the meaning of Regulation 30 of the National Minimum Wage Regulations and accordingly she had not received the pay required by the Regulations. The Respondent on the other hand, contended that the obligation on the Claimant during her sleep-in shift was to be “available” for the purposes of working and time spent asleep does not count as "time work".
The Tribunal upheld the claim noting that the fact the Claimant may have had little or nothing to do during sleep-in shifts and that she was entitled to sleep did not detract from the fact that she was required to be there and to deal with such situations as might require her attention or intervention, to enable the Respondent to comply with the legal obligation placed upon it and to provide an appropriate level of care for the service users. The Claimant had responsibilities to undertake even though the frequency of actual activity might have been low and even though she was entitled to sleep. The Claimant was required to be present and would have been disciplined if she left the house, putting Mencap in breach of its legal obligations too.
The EAT agreed ruling that the Claimant was working and performing the role of a carer during the sleep-in shift whether asleep or not. The Employment Judge had also concluded as relevant that there is a continuing obligation throughout the night during which the Claimant has sole responsibility for keeping a listening ear and using her “professional judgment and … detailed knowledge … to decide when she should intervene”.
Each case is likely to turn on the consideration of its own particular facts. There will be cases where the line is a difficult one to draw but the multifactorial approach is likely to prove attractive to Industrial Tribunals also now tasked to determine similar cases in Northern Ireland.