The EAT confirmed that multiple factors need consideration when determining whether workers who sleep during shifts engage in ‘time work’ and are therefore entitled to the National Minimum Wage (NMW). Four relevant factors the EAT identified when considering whether an individual is ‘working’ while sleeping at work are:
- the employer’s particular purpose in engaging the worker. For example, if there is a regulatory requirement to have someone present at all times this may indicate that the individual is working.
- the extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer, for example whether the individual may be disciplined if they are not present.
- the degree of responsibility undertaken by the worker. For example, heavier personal responsibility being placed on the individual indicates that they are ‘working’
- the immediacy of the requirement to provide services if something untoward occurs or an emergency arises.
Why this matters?
This judgment provides useful guidance, although each case will depend on the circumstances of the particular situation. Employers should be mindful that even if a worker has little or nothing to do during certain hours does not mean they are not working for the purposes of NMW legislation. Employers should consider their pay practices for ‘sleep-in’ shifts carefully in order and take professional advise if they are unsure if NMW should apply to their workers ‘Sleep Ins’.