In what has been an eagerly anticipated case for both care workers and care providers the Employment Appeal Tribunal (EAT) has confirmed it’s decision in the case of Focus Care Agency Limited v Roberts  UKEAT/0143/16/DM. Regular readers of the Taylor & Emmet LLP Employment Team blogs will know that the recent reaction to the topic of payment of the National Minimum Wage for sleep-ins has caused significant controversy with workers, managers and care company owners engaging in lively debate about the issue in response to our previous blogs.
Finally it appears that the Focus case has provided some much needed legal clarity on the subject.
An employer is obliged to pay either the National Minimum Wage or National Living Wage (both NMW in this article) for all “working time.” Therefore the legal question to determine in this context is whether the time spent by a worker doing a sleeping night shift or “sleep-in” is classed as working time?
Interestingly the National Minimum Wage Regulations refer to hours where the worker is “awake for the purposes of working” as counting towards working time which on the face of it appears to exclude the hours a worker completes during a sleep-in as the worker would usually be sleeping during this time. However in recent cases a distinction has been made between whether the worker is “on-call” or working by “virtue of being present” during a sleep-in.
A worker that is completing a sleep-in has the possibility of being either and each situation will depend on the specific circumstances. If the worker is considered to be “on call” the employer will only be required to pay NMW for the hours that the worker is awake but if the worker is there “by virtue of being present” then an employer is required to pay NMW for the whole night shift. Whilst the Focus case confirms that there is no single factor that determines the answer to this it does set out a list of questions for a Tribunal to answer in order to distinguish whether the worker is “on-call” or working “by virtue of being present”:
- What is the employer’s particular purpose in engaging the worker? For example, if the employer is subject to a regulatory or contractual requirement to have someone present then the worker is more likely to be working by virtue of being present;
- What is the extent to which the worker’s activities are restricted? For example, if the worker would face a possible disciplinary if they did not remain on the premises throughout the shift then they are more likely to be working by virtue of being present;
- What is the degree of responsibility undertaken by the worker?
- How immediate is the requirement to provide services if something unexpected occurs? For example, if the worker is required to respond to a situation that develops during their shift then they are more likely to be working by virtue of being present.
The weight each factor carries is likely to vary according on the facts of the case and it should also be remembered that all pay received by the worker will be taken as an average together with the pay received for other hours worked and therefore if a worker is paid more than the NMW for hours worked when they are not doing sleep-ins this can off set the sleep-in payment and as a result can mean that a worker is in fact paid NMW for all hours worked despite receiving a flat rate for sleep-ins that is less than the NMW.
A pub manager who is provided with accommodation above the pub who has limited responsibility whilst sleeping (and there is an expectation to contact the emergency services if anything untoward happened) is unlikely to be considered working for the purposes of the NMW and therefore they are likely instead to be “on-call”, whereas following the Focus case it would in my view be an unusual set of circumstances which would mean that a care worker was not entitled to NWM during a sleep-in following this case.