Sleeping care worker only "available" for work and not actually working for minimum wage purposes
Author: Darren Newman
Consultant editor Darren Newman looks at a recent case in which the Court of Appeal ruled that a care worker required to sleep on the employer's premises was simply "available" for work rather than actually working, and therefore caught by the sleepover exemption in the minimum wage legislation.
The Court of Appeal has ruled in Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad and another (t/a Clifton House Residential Home) [2018] IRLR 932 CA that those who are allowed to sleep at their workplace - ready to be woken if needed - are not working while they are asleep. The sleeping time does not therefore count towards the calculation of their national minimum wage entitlement. It may seem to be common sense that an employee cannot be working while not awake - but I think there are good grounds to believe that the decision is wrong.
It is 20 years since the minimum wage was introduced and the reason that this issue has taken so long to reach the Court of Appeal is that, on the face of it, the legislation specifies that working time does not include time spent sleeping on a sleepover shift. The National Minimum Wage Regulations 2015 (SI 2015/621) contain the latest version of a sleepover exception that has been included since the legislation was first introduced. Regulation 32 says that "time work", defined in reg.30 as non-salaried work that is paid according to a specific period of time, such as hourly paid work or daily paid work, includes time when the employee must be "available" for work at or near the workplace. This prevents an employer from arguing, for example, that a shop worker stops working when there are no customers in the shop or there is no immediate task to be performed. It also covers "on-call" time - but only where the employee's presence is required at or near the workplace. However, reg.32 also states that the provision applies only when the employee is "awake for the purposes of working". The drafting is not terribly clear, but it certainly seems to say that those who are expected to sleep at work will not be seen as working while they do so.
In recent years it has become clear that the issue is complicated - with a number of Employment Appeal Tribunal (EAT) decisions finding that workers can be seen as working even while they are permitted to sleep. The point is that the sleepover exception applies only to time when the employee is available for work, rather than actually working. This means that the exception is relevant only if reg.32 is needed in the first place. If the time spent on a sleepover shift is already working time rather than time when the worker is available for work, reg.32 has no role to play and the sleepover exception does not apply.
In Mencap the Court of Appeal accepts this analysis. It agrees that the question is whether an employee on a sleepover shift should be regarded as working, or simply being available for work so that reg.32 applies. However, whereas the EAT, following on from earlier cases, set out a number of criteria aimed at answering this question, the Court of Appeal seems to think that the answer is straightforward. The Court ruled that the sleepover exception was designed to deal comprehensively with the issue of employees who are permitted to sleep through a shift unless something happens that needs their attention. It considered that, because the issue is dealt with in reg.32, the intention behind the Regulations was clearly that such employees would otherwise be treated as being available for work rather than actually working. Giving the only reasoned judgment in the case, Lord Justice Underhill said "it would not be a natural use of language ... to describe someone as 'working' when they are positively expected to be asleep throughout all or most of the relevant period".
However, when it comes to the question of calculating working time under the Working Time Directive (2003/88/EC), such time certainly does count as working time. In a number of cases (most recently Ville de Nivelles v Matzak [2018] IRLR 457 ECJ) the European Court of Justice has held that a worker who is on call at a place dictated by the employer is to be regarded as working for the whole of the period. Back in 2003, it was made clear in Landeshauptstadt Kiel v Jaeger [2003] IRLR 804 ECJ that the fact that the employee was permitted to sleep when not specifically needed did not prevent that time from counting towards the total. We must remember that these cases relate only to the Working Time Directive and are not binding when it comes to calculating minimum wage entitlement - but they might have given the Court of Appeal some pause before simply dismissing the notion that an employee on a sleepover shift is working.
After all, what is work? At its most basic, it is surely a task or series of tasks performed by a worker in return for reward from the employer. When a worker in a care home stays in the workplace overnight, do they do so "just in case" some work is needed - or is the act of staying on the premises the very task that the employer needs doing? The employer after all gains value from the worker's presence. It might help the employer meet its regulatory requirements, or the availability of staff 24 hours a day might be a feature of the service that the employer advertises to customers. Sleeping overnight may not seem an onerous form of work - but the worker is separated from their family and the comforts of home and is not free to do as they please. As Milton said: "They also serve who only stand and wait." Does it really make so much difference if a worker is allowed to sleep and wait?
Underhill LJ did not engage much with the nature of work - clearly thinking that the answer was obvious. However, I suspect that the Supreme Court would be keener to grapple more forcefully with the issue if permission to appeal is granted. In the meantime, this decision is binding and the position now is that employees on a sleepover shift are working only when they are "awake for the purposes of working".
