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National Minimum Wage for sleeping on the job?

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All employers irrespective of their size must pay workers a National Minimum Wage (NMW) with different rates applying for different categories of workers (current rates set out below).   

To establish whether a worker has been paid the NMW employers need to calculate a workers average hourly rate by dividing a workers total remuneration by the total number of hours worked during a pay reference period.

However the hours in respect of which a worker is entitled to be paid the NMW depends on the type of work being carried out. There are four categories of work: salaried work, time work, output work and unmeasured work. Determining which hours count as work can become complicated. The EAT has recently considered in three joined appeals whether workers who are ‘on-call’ or are permitted to sleep on the job are engaged in ‘time work’. Previous case law suggested that workers were entitled to NMW for simply being present, even if they were not working.  

Focus Care Agency Ltd v Roberts, Frudd v The Partington Group & Royal Mencap Society v Tomlinson-Blake

The EAT held that a multi-factorial approach is required when assessing whether a worker is entitled to the NMW where they are present in the workplace but allowed to sleep, or whether they are only entitled to the NMW when they are awake and carrying out their duties. The previous approach was rejected; instead a number of potentially relevant factors should be considered, with the weight of each factor varying according to the facts of the case: 

  1. The employer’s particular purpose in engaging the worker (e.g. a regulatory or contractual requirement to be present may indicate the worker is working by just being present).
  2. The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer (e.g. would a worker be disciplined if they do not remain in post throughout their shift?)
  3. The degree of responsibility undertaken by the worker (e.g. present to call for assistance or to personally carry out duties?)
  4. The immediacy of the requirement to provide services if something untoward occurs or an emergency arises (e.g. is the worker assisting another worker or is it up to them to provide the service?).

Employers of workers who are ‘on-call’ or are permitted to sleep on the job, will therefore need to carefully consider exactly what the workers shift entails with reference to the factors set out above in order to determine whether a worker is entitled to the NMW.

If you require any further advice on this, or any other Employment law matter, please contact the Chattertons Employment law team.

National Minimum Wage rates as of April 2017:

25 + (National Living Wage)   £7.50

21 – 24                                    £7.05

18 – 20                                    £5.60

Under 18                                 £4.05

Apprentice                               £3.50