{"id":1171,"date":"2017-05-17T14:58:18","date_gmt":"2017-05-17T14:58:18","guid":{"rendered":"http:\/\/www.tayloremmet.co.uk\/blogsite\/?p=1171"},"modified":"2017-05-17T14:58:18","modified_gmt":"2017-05-17T14:58:18","slug":"sleeping-on-the-job-clarification-on-sleep-ins","status":"publish","type":"post","link":"https:\/\/www.tayloremmet.co.uk\/blogs\/sleeping-on-the-job-clarification-on-sleep-ins\/","title":{"rendered":"Sleeping on the job: Clarification on sleep-in payments"},"content":{"rendered":"

\"\"<\/a>In what\u00a0has been an eagerly anticipated case for\u00a0both care workers and care providers\u00a0the Employment Appeal Tribunal (EAT) has\u00a0confirmed it’s decision in the case of Focus Care Agency Limited v Roberts <\/u><\/em>[2017] UKEAT\/0143\/16\/DM<\/u>. Regular readers of the Taylor & Emmet LLP\u00a0Employment Team blogs will know that\u00a0the recent reaction to the\u00a0topic of payment of the National Minimum Wage for sleep-ins has caused significant controversy with workers, managers and care\u00a0company owners engaging in lively debate about the issue in response to our previous blogs.<\/p>\n

Finally it appears that the Focus<\/span><\/em> case has provided some much needed legal clarity\u00a0on the subject.<\/p>\n

An employer is obliged to pay either the National Minimum Wage or National Living Wage (both\u00a0NMW in this article) for all “working time.”\u00a0Therefore the\u00a0legal question\u00a0to determine in this context is whether the time spent by a worker\u00a0doing a\u00a0sleeping night shift or “sleep-in” is classed as working time?<\/p>\n

Interestingly the\u00a0National Minimum Wage Regulations\u00a0refer to hours where the worker is “awake for the purposes of working” as counting towards working\u00a0time which on the face of it\u00a0appears to exclude the hours a worker completes during a sleep-in\u00a0as\u00a0the worker would usually be sleeping during this time. However\u00a0in recent cases\u00a0a distinction has been made between whether the worker is “on-call” or working by “virtue of being present” during a sleep-in.<\/p>\n

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<\/span><\/em> case confirms that there\u00a0is no single factor that determines the answer to this\u00a0it does set out a list of questions for a\u00a0Tribunal to answer in order to distinguish whether the worker is “on-call” or working “by virtue of being present”:<\/p>\n