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Time spent sleeping
[ch 4: pages 98-99]There are special rules for when hourly-paid workers use sleeping accommodation provided with their job. Effectively, the law distinguishes between people who are working while sleeping, such as a night watchman, and workers provided with accommodation at or near work where they are expected to sleep while waiting to see whether they will be needed.
Anyone who is working while asleep should be paid for all the hours they work. Their average pay during the relevant pay reference period must not fall below the NMW. For example, a night security guard's job is to be at the work premises. Just because they can sleep or watch TV while on the premises, does not mean they are not working (Scottbridge Construction v Wright [2003] IRLR 21).
Whether or not someone is working while asleep will depend on all the facts. In British Nursing Association v Inland Revenue [2002] IRLR 480, home-based workers employed to answer night-time telephone enquiries were entitled to the NMW throughout the shift. It did not matter that they could do other things when not answering the phone, including sleeping, or how many calls they got. Their work was to be available to answer any calls made. Even though they were in their own home, they were working.
By contrast, 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 working for the purposes of the NMW when they are “awake for the purpose of working”. Someone who uses sleeping accommodation provided by the employer “by arrangement” is not “working” while asleep for the purposes of the NMW. They are, for example, free to leave the sleeping accommodation during the night to go to the cinema without asking the employer’s permission — because they are not “working”.
In relation to careworkers on overnight sleep-in shifts at service users’ homes, the law has been thrown into doubt as a result of a Court of Appeal ruling described by public services union UNISON as a “huge mistake”. It is currently under appeal to the Supreme Court (see box).
Careworkers and nightwork — law in a state of flux
When it comes to careworkers who provide overnight support to service users in their own home, the law is in a state of flux as a result of a disappointing Court of Appeal ruling, described by public services union UNISON as a “huge mistake”. In Royal Mencap Society v Tomlinson-Blake [2018] EWCA Civ 1641, the Court of Appeal (CA) has ruled that in general, a careworker who is asleep on a sleep-in shift in a service user’s home is not “working” while asleep for the purpose of National Minimum Wage law. As a result, says the CA, the careworker is only entitled to the NMW for hours when they are “awake for the purpose of working”. The “essence” of a careworker’s sleep-in shift, according to the CA, is that they are expected to be asleep, only providing help when required.
This ruling, says UNISON, who supported the case, challenges common sense, as well as the established legal understanding of what counts at work. The reality is that careworkers must remain in the service user’s home throughout the shift; they would be disciplined for leaving without permission; and they must be on hand whenever needed to get up and care for service users. All these factors strongly suggest that all time spent on the overnight shift is work.
Earlier rulings, for example, Whittlestone v BJP Home Support Limited [2013] UKEAT 0128/13/1907, have stated clearly and unsurprisingly that the whole overnight shift is work, just like the work of a night security guard or an overnight telephonist working from home, irrespective of the fact that the careworker is asleep. The Mencap ruling looks like a policy decision about the allocation of resources, the sort of decision that should be left to parliament. Press reports suggest that it could save the care sector “£400 million in back pay to staff”. UNISON will appeal to the Supreme Court, but any judgment is unlikely before 2020.
Meanwhile, strike action is taking hold in the sector, with evidence that some employers are reverting to paying a “flat rate” for sleep-in shifts, leaving some workers out of pocket by as much as £40 a night.