Time spent sleeping



There are special rules for when hourly-paid workers are using sleeping accommodation that is provided with their job. The law distinguishes 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”. 



This has been interpreted to mean that 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 Whittlestone v BJP Home Support Limited [2013] UKEAT 0128/13/1907, an important case involving a care worker who worked a night shift, 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, the Department for Business, Energy and Industrial Strategy (BEIS) published new guidance on calculating the national minimum wage, available online. It contains useful examples, based on reported cases.