The Employment Appeal Tribunal (EAT) recently handed down their decision as to the correct approach to be taken when considering pay for those who ‘sleep in’ as part of their working duties – for example carers who sleep at their client’s houses so as to be on call throughout the night. Workers in the hospitality industry may also be affected by the judgment.
In separate cases that were heard together by the EAT, carers from three different organisations argued that they were entitled to be paid the National Minimum Wage (NMW) for their entire shift, even when they were sleeping, as opposed to only being considered as working when they were awake to carry out their duties.
It is likely that a number of other similar claims will now be pursued through the Tribunals including a class action against Sevacare (a company providing care workers to various local authorities across England) by 17 workers some of whom claim that they were required to stay in the homes of their elderly patient’s for 24 hours a day, seven days at a time. According to the Claimants’ Union some of these carers were paid as little as £3.27 per hour.
In the judgment of the EAT, Mrs Justice Smiler DBE was clear that there is no single factor that will determine the rights of a worker in these circumstances and that a ‘multifactorial evaluation’ is required having regard to the context and circumstances of a particular case.
The relevant factors in this evaluation may include:
- The employer’s purpose in engaging the worker;
- The extent to which the worker’s activities are restricted by the requirement to be present and at the employer’s disposal during the night;
- The degree of responsibility undertaken by the worker while sleeping in;
- The immediacy of the requirement of the worker to provide services if something untoward does occur.
The EAT, having applied these factors to the three cases before it, upheld the first claim in which a carer had sole responsibility for using her professional judgment to decide when she should intervene and, if required, had to intervene immediately herself. The fact that she was required to keep a ‘listening ear’ out for her clients whether she was asleep or not was also relevant, as was the existence of a regulatory obligation on her employer to ensure someone was on the premises at all times.
The second case involved a husband and wife who were a receptionist and warden at a caravan park. They were contractually obliged to reside in a caravan onsite, to be on call to answer any ‘out of hours’ customer enquiries as well as being obliged to deal with emergencies. They were only paid if they actually attended to an emergency call out but they both issued Tribunal proceedings claiming pay for the entire period during which they were on call.
The original Tribunal rejected the claim that these two individuals were working at all times (and so entitled to the national minimum wage even if they weren’t called out) because they were at home while they were on call and able to sleep but the EAT remitted the case to a fresh Tribunal for a rehearing having regard to the legal multifactorial approach above. The fact that they were at home while on call was not, in itself, enough to conclude that they weren’t working.
The final case involved an arrangement whereby the employer provided a supported living service to its clients – a service that was regulated by the Care Quality Commission. At night this meant engaging two night carers; a waking night worker and a sleep in night worker. As the name indicates, the waking night worker was required to be awake at all times and had primary responsibility for the client while the sleep in night worker was obliged to assist in any emergencies that may arise.
Again the EAT said that the original Tribunal was wrong in not carrying out a multifactorial assessment when reaching its decision.
Mrs Justice Smiler DBE acknowledged that the use of a multifactorial approach sacrificed certainty around the question or working time so any employer looking to the EAT for clear and concise guidance from this judgment will be disappointed. As is often the case with employment law, there is no one right or wrong answer that fits all circumstances.
Organisations who think they may be affected by this judgment should carry out a risk assessment having regard to the factors above and consider what changes if any need be made.
If you would like assistance with that assessment (or any area of employment law) please contact Samantha Dickinson or Martin Williams on 0800 84 94 101