Time spent sleeping


There are special rules for when hourly-paid workers are using sleeping accommodation that is provided with their job. The law draws a distinction between people who are “working” while sleeping, such as a night watchman or a care worker working an over-night shift, and workers who are provided with accommodation at or near work where they are expected to sleep while waiting to see if they will be needed. 


Regulation 32(2), NMWR 15 says that an hourly-paid worker who “by arrangement sleeps at or near a place of work” and is “provided with suitable facilities for sleeping”, is only engaged in working time for the purposes of the NMW when “awake for the purpose of working”. 


In other words, workers who are provided with sleeping facilities by the employer and who sleep there “by arrangement”, but who are free to come and go from those facilities during the night as they please without risk of discipline or dismissal, are only entitled to the NMW for the hours spent using those facilities when they are both awake and working (i.e. at the employer’s disposal).


By contrast, an hourly-paid worker whose job obliges them to stay at the workplace overnight, whether or not they are asleep, must be paid at least the NMW for all the hours they are contracted to work, including all the hours spent sleeping. For example, it is the job of a night watchman to remain on the premises. The fact that some of the job duties involve sleeping or watching the TV is irrelevant to whether those duties are paid work. The whole shift must be paid (Scottbridge Construction v Wright [2003] IRLR 21). 


In British Nursing Association v Inland Revenue [2002] IRLR 480, home-based workers who were employed to answer night-time telephone enquiries as and when they came in were entitled to the NMW throughout the shift. It did not matter that they could do other things when they were not answering the phone — even sleeping — or how many calls they got. This is because their work was to be available to answer any calls made. Even though they were in their own home, they were working — not on standby — throughout the shift.


In the leading case, Whittlestone v BJP Home Support Limited [2013] UKEAT 0128/13/190, which involved an overnight care worker, the judge applied what has become known as the “fish and chip” test. Whittlestone was “working” throughout her nightshift even though her sleep was rarely disturbed, because she was at the disposal of her employer throughout and could be disciplined if she left her post. “She could not for instance slip out for a late night movie or for fish and chips,” said the judge.


In October 2015, BIS published new guidance on calculating the national minimum wage which contains some useful examples, based on reported cases:


Example 1 — where the NMW is likely to apply


A person works in a care home and is required to work overnight shifts where they sleep on the premises. The person’s employer is required by statute to have someone on premises for health and safety purposes. The person would be disciplined if they left the premises at any stage during the night.


It is likely that the person would be considered to be “working” for the whole of the overnight shift even when they are sleeping.


Example 2 — where the NMW is unlikely to apply


A person works in a pub and lives in a flat above the pub. The employer requires the person to sleep there. However, the person can come and go as they please during the night as long as they do sleep there. There are no specific responsibilities during the evening: rather the person sleeps there so the flat is occupied i.e. to reduce the likelihood of the premises being burgled.


The person is likely only to be entitled to the NMW when they are awake and dealing with any emergencies in the night.