The appeals in these three cases consider the proper approach to the question whether employees who sleep-in in order to carry out duties if required engage in “time work” for the full duration of the night shift or whether they are only entitled to the national minimum wage when they are awake and carrying out relevant duties. Although similar, the facts vary between the cases. One of the appeals succeeded and the other two were dismissed.

The EAT considered several previous judgements in this area of law and concluded that a multifactorial evaluation is required.  No single factor is determinative (including a requirement to sleep on the premises) and the relevance and weight of particular factors will vary with and depend on the context and circumstances of the particular case:

"The authorities identify a number of potentially relevant factors.  No single factor is determinative and the weight each factor carries (if any) will vary according to the facts of the particular case.  The following are potentially relevant factors in determining whether a person is working by being present:

(i) The employer’s particular purpose in engaging the worker may be relevant to the extent that it informs what the worker might be expected or required to do: for example, if the employer is subject to a regulatory or contractual requirement to have someone present during the particular period the worker is engaged to be present, that might indicate whether and the extent to which the worker is working by simply being present.

(ii) The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer may be relevant. This may include considering the extent to which the worker is required to remain on the premises throughout the shift on pain of discipline if he or she slips away to do something else.

(iii) The degree of responsibility undertaken by the worker may be relevant: see Wray & J W Lees... where the EAT distinguished between the limited degree of responsibility in sleeping in at the premises to call out the emergency services in case of a break-in or a fire on the one hand, and a night sleeper in a home for the disabled where a heavier personal responsibility is placed on the worker in relation to duties that might have to be performed during the night.

(iv) The immediacy of the requirement to provide services if something untoward occurs or an emergency arises may also be relevant. In this regard, it may be relevant to determine whether the worker is the person who decides whether to intervene and then intervenes when necessary, or whether the worker is woken as and when needed by another worker with immediate responsibility for intervening."

Full decision:
http://www.bailii.org/uk/cases/UKEAT/2017/0143_16_2104.html