Time spent sleeping




There are special rules for when hourly-paid workers use sleeping accommodation provided with their job. The law distinguishes between people who are working while sleeping, such as a night watchman or a care worker on an over-night shift, and workers 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”. 




An hourly-paid worker whose job requires them to remain at the workplace overnight must be paid at least the NMW for all the hours they are required to work (including time spent asleep). For example, it is the job of a night security guard to remain on the premises. The fact that he or she is allowed to sleep or watch TV while on the premises is irrelevant to the question whether they are working (Scottbridge Construction v Wright [2003] IRLR 21). 


In British Nursing Association v Inland Revenue [2002] IRLR 480, home-based workers 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, including 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 throughout the shift.




In Whittlestone v BJP Home Support Limited [2013] UKEAT 0128/13/1907, a careworker sleeping overnight in a service user’s home was working throughout her nightshift because she remained at her employer’s disposal throughout and could be disciplined if, for example, she left her post. “She could not, for instance, slip out for a late-night movie or for fish and chips,” said the judge.
It was irrelevant that her sleep was rarely disturbed.


Whether or not someone is working (and therefore, entitled to the NMW) while sleeping overnight depends, in each case, on a “realistic assessment” of the contract and the context, according to a new important EAT ruling, Focus Care Agency Ltd v Roberts UKEAT/0143/16/DM, Frudd and another v Partington Group UKEAT/0244/16/DM, Royal Mencap Society v Tomlinson-Blake [2017] UKEAT/0290/16/DM. In this case, the EAT said that the following factors likely to be significant: 


• the employer’s purpose. A worker engaged to sleep overnight to meet a regulatory or contractual requirement to have someone present at all times is probably working; 


• restrictions on activities during the shift. For example, if the worker risks disciplinary action if they leave the premises without permission, they are probably working;


• the degree of responsibility assumed by the worker during the shift. The greater the responsibility, the more likely they are to be working; and


• how quickly they must be available to be called on to provide services, for example in an emergency.