Should Workers be paid to sleep?

In the cases of; 1) Royal Mencap Society v Tomlinson-Blake UKEAT/0290/16/DM; 2) Frudd v The Partington Group UKEAT/0244/16/DM; and 3) Focus Care Agency Ltd v Roberts UKEAT/0143/16/DM, the Employment Appeal Tribunal (”EAT”) was asked to consider whether individuals on night shifts were “working” for the purposes of calculating pay under the national minimum wage legislation. This has been a thorny issue for employers for a number of years and is particularly relevant in the care sector.

Case 1. Ms Tomlinson-Blake (“TB”) is a highly trained carer employed by Mencap to care for two men who require 24 hour care. She worked shifts, including a night shift lasting nine-hours, during which she had to remain on site to provide assistance to the men if required. No specific tasks were assigned to her during this time and she could sleep on site. She received a flat rate fee for each shift with additional payments being made depending on the level of care required during the night. Ms TB argued that, contrary to Mencap’s policy, the time spent on the night shift was ‘working’ time (even when she was asleep) and she should be paid her usual salary rather than a lesser flat rate fee. She brought a claim for back-pay based on the number of hours worked. The Employment Tribunal (‘ET’) concluded that the time spent on the night shift was indeed time worked therefore Ms TB was entitled to back pay. Mencap appealed to the EAT but the EAT upheld the decision.

Case 2. Mr and Mrs Frudd were employed as a receptionist/warden team at a caravan site and lived on site. They were required to work day shifts and, subject to a rota, also had to be on call on certain days from the end of their shift until the following morning. They were not paid for time spent on call other than a flat rate ‘emergency call out’ fee which was paid if assistance was provided. Mr and Mrs Frudd claimed that they should have been paid for the whole on call period. The ET disagreed and found that, because Mr and Mrs Frudd were effectively at home during the on call periods, they were not entitled to additional pay. The EAT felt that the ET’s methodology in reaching this conclusion was incorrect and remitted the case to a fresh tribunal for further consideration.

Case 3. Mr Roberts was employed by Focus as a carer and worked shifts. He worked for a number of years, but it was only after his dismissal that he brought a claim for unfair dismissal and unlawful deduction of wages. This was because Mr Robert’s contract stated that he would receive an hourly rate of pay for any night shift worked but he had, in fact, only been paid a flat rate fee. The case focused on the nature of Mr Robert’s duties as a ‘sleep-in night worker’ which required him to be on site, but he could sleep and was only required to help with emergency care. This was contrasted to a ‘waking night worker’ who was also present during the night shift but who had to stay awake and had primary responsibility for the service users during that period. Waking night workers were paid an hourly rate. Ultimately, the case was decided on the basis of Mr Robert’s contract of employment which made no reference to payment of a flat rate fee. The ET found that Mr Robert’s contract entitled him to an hourly rate of pay therefore his claim succeeded. The EAT upheld this decision.

What can we learn from these cases?

Mr Robert’s case clearly shows the importance of ensuring that contracts of employment accurately reflect the terms agreed between the parties and that these are reviewed regularly to ensure they are up to date.

More broadly, they show the difficulties in determining what is ‘time working’, for which employees are entitled to be paid, and what is not. The EAT concluded that no single factor is determinative in these cases and a multi-factorial approach is required, giving consideration to all relevant factors such as:-

  1. The employer's purpose in engaging the worker – is this a statutory or contractual requirement?
  2. The extent to which the worker's activities are restricted by the requirement to be present – can the worker slip away and do other things?
  3. The degree of responsibility undertaken by the worker;
  4. The immediacy of the requirement to provide assistance and whether the assistance is provided on a proactive or reactive basis.

The outcome is disappointing for those seeking certainty in what is a notoriously difficult area of law. However, it highlights;-

  • the need for employers to consider why the worker is required;
  • to assess whether or not payment for the entire shift needs to be made in advance of the worker being engaged and for this to be kept under review; and
  • for the contracts of employment to be accurate and kept under review on a continuing basis to reflect any agreed changes.

 

If you have any questions about the above or any aspect of employment law, please do not hesitate to contact Debbie Sadler at d.sadler@hewetts.co.uk or on 0118 957 5337.

Published on 05/06/2017

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