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Should the National Minimum Wage be payable when employees are carrying out sleep-ins?
Following the conjoined cases of Focus Care Industry v Roberts; Frudd v The Partington Group; Royal Mencap Society v Tomlinson-Blake, the EAT was required to determine whether or not the national minimum wage should be payable to employees whilst carrying out sleep-ins. Although the claims were considered collectively and had variations to the facts, the purpose of this article will focus primarily on the case of Royal Mencap Society v Tomlinson-Blake.
The Claimant was employed by the Royal Mencap Society as a highly trained and qualified Care Support Worker, who was responsible for supporting two men with substantial learning difficulties. The two men resided in a privately owned property and had a care and support plan in place, so as to enable them to lead as independent a life as possible, whilst under 24-hour support.
As part of her role, the Claimant was required to carry out sleep-ins at the premises and was paid a flat rate of £29.05 for the night. The employee's duties consisted of responsibilities including, but not limited to:
- Intervene where necessary in situations which may require her involvement;
- Respond and deal with emergencies which may arise;
Whilst the need for intervention during the night shift was “real but infrequent”, during the previous 16 months, she had only been required to intervene 6 times. The Claimant alleged that she works simply by being present in the house through her night shift and therefore the premise of her claim was that the sleep-in shifts constituted time worked within the meaning of Regulation 30 of the National Minimum Wage Regulations 2015.
The Respondent accepted the Claimant’s contention and concluded that although the Claimant may have had little or nothing to do during the sleep-in shifts and was allowed to sleep during this period, did not detract from the need for her to be on hand and present, in the event her assistance was required. Moreover, the ET identified that the Claimant was not simply on call as she had to be at the residence in order to properly perform her duties and to comply with Mencap’s regulatory obligations to have someone on the premises. The EAT concluded that the ET had adopted a ‘multifactorial evaluation’ to determine whether she was doing time work, and concluded she was.
The EAT dismissed Mencap’s appeal and concluded that the time spent during sleep ins, could attract a payment of the national minimum wage.
In reaching its conclusion the court detailed that there was no single factor which was determinative of the outcome and therefore a multifactorial evaluation is required. In reaching its decision the factors considered were as follows (para 44 of the Judgment):
- The employer’s particular purpose in engaging the worker may be relevant to the extent that it informs what the worker might be expected or required to do: for example, if 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, that might indicate whether and the extent to which the worker is working by simply being present;
- The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer may be relevant. This may include considering the extent to which the worker is required to remain on the premises throughout the shift on pain of discipline if he or she slips away to do something else;
- The degree of responsibility undertaken by the worker may be relevant. For example this could distinguish between the limited degree of responsibility in sleeping in at the premises to call out the emergency services in case of a break-in or a fire on the one hand, and a night sleeper in a home for the disabled where a heavier personal responsibility is placed on the worker in relation to duties that might have to be performed during the night.
- The immediacy of the requirement to provide services if something untoward occurs or an emergency arises may also be relevant. In this regard, it may be relevant to determine whether the worker is the person who decides whether to intervene and then intervenes when necessary, or whether the worker is woken as and when needed by another worker with immediate responsibility for intervening.
Tip for Employees
It would therefore be advisable that employers consider their current working arrangements for employees and assess how they calculate their sleep in payments in accordance with the multifactorial approach as outlined above. A failure to take notice of this approach could result in the employees duties being categorised as “time work” and could therefore be entitled to the national minimum wage.
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