The EAT has ruled that a care worker at the Respondent's residential care home who was required to work a number of ‘sleep-in’ night shifts and be available for emergency purposes was working for the purposes of the NMW even whilst sleeping. The employee in question was paid a set amount (£20-25 per sleep-in duty shift) that was below that which she should have received had all the hours attracted the NMW  Regulations apply in care homes, requiring them to have qualified staff available at all times.

This was a key element in deciding whether sleeping could be regarded at 'work': "An important consideration in determining whether an employee is carrying out time work by reason of presence at the Respondent’s premises ‘just in case’ must be why the employer requires the employee to be on the premises. If he requires the employee to be on the premises pursuant to a statutory requirement to have a suitable person on the premises “just in case” that would be a powerful indicator that the employee is being paid simply to be there and is thus deemed to be working regardless of whether work is actually carried out."

The EAT also looked at another common situation in service industries, where employees often have more than one job or work separate shifts: "In our opinion, issues as to core hours and job continuation are irrelevant. The Claimant was required to undertake the night shifts quite separately to her day job." http://bit.ly/1uTDF6M

Practical Lessons from this Decision

Decisions in this area of law are 'difficult to reconcile', according to the EAT in this case. They are correct - some decisions point to payment being required, others do not. The EAT's decision here (which is not authority in NI but is very persuasive) points to the circumstances of the employer as a key factor - in this case the caring nature of the service is governed by sector Regulations on minimum numbers of suitably qualified staff available to look after the safety and welfare of residents.

As the EAT concluded "... it was essential that she was there even if she did nothing." If you have employees in similar circumstances and are not paying the NMW for sleepover duties, you may wish to seek legal advice.