The case of Focus Care Agency Limited v Roberts and other cases 2017 considered three appeals involving workers carrying out sleep- in shifts where they were required to carry out duties if necessary.
The crux of the issue in the three appeals was whether the employees who slept in so that they could perform duties, if needed, engaged in “time work” for the full duration of the shift or whether they were working for National Minimum Wage (“NMW”) purposes only when they were awake to carry out any relevant duties.
The issue is particularly significant in the care sector where sleep-in shifts commonly arise. The three appeals raised the same broad issue: whether a worker can be carrying out time work in accordance with Regulation 30 of the NMW Regulations even in periods where he or she is permitted to sleep.
The employees in the first and third appeals (Focus Care Agency Ltd v Roberts and Royal Mencap Society v Tomlinson-Blake) were support workers for vulnerable adults. During night shifts they had no specific tasks to carry out but they had to remain on the employer’s premises in case their help was needed. They were provided with sleeping facilities and were paid at a flat rate for the shift. Ms Tomlinson-Blake received additional pay if she was required to work for more than an hour during the night. The employees in the second appeal (Frudd and anor v The Partington Group Ltd) were a husband and wife team who worked at a caravan site and were required to live there. They were on call several nights a week and had to respond to emergency call- outs. They were paid a flat rate of £8.50 per person per call out.
In Tomlinson-Blake the employment tribunal had held that the whole period of Ms Tomlinson-Blake’s sleep-in shifts at the employer’s premises amounted to “time work”, irrespective of whether or not she was sleeping. The employer was appealing that decision.
In the Frudd case an employment tribunal had held that the workers were only doing time work while actually working because they were at home during periods when they were not carrying out duties. Their claim for arrears of pay under the NMW Regulations had therefore failed and they were appealing.
In the Roberts case an employment tribunal had upheld claims of unpaid wages.
The Employment Appeal Tribunal heard all three cases together as they raised broadly the same issue: whether a worker could be carrying out “time work” under the NMW Regulations even in periods where he or she was allowed to sleep ie he or she is nevertheless regarded as working by being present at the place of work.
In Tomlinson-Blake the EAT upheld the tribunal’s decision that the worker was performing time work throughout her shift. The worker was required to be present on site and would have been subject to disciplinary action if she left her post. The employer was under a legal obligation to have a worker present. It was not a case where the worker was able to do as she pleased provided she remained contactable. It was held that the worker was not just available for work but was actually working and therefore entitled to be paid the NMW for the whole period during which she was present.
In Frudd the EAT remitted the case to a fresh tribunal for a re-hearing.
In Roberts, the EAT held that the worker was contractually entitled to be paid at a rate that was higher than the NMW for sleep- in duties.
The ruling has been widely publicised as spelling disaster for an already overstretched care sector. Mencap has a liability of around £20 million as a result of the Roberts decision so it is not surprising that it is appealing to the Court of Appeal.
The Government has accepted that its official guidance on the matter of payments for sleep-ins was misleading because it stated that this type of work did not qualify for the NMW. The guidance was amended in October 2016 and the Government has taken measures to support providers which not only owe arrears of pay but are also liable for significant underpayment penalties. In July this year, the Government announced that historic penalties in the care sector in respect of any underpayment for sleep-ins that occurred in a pay reference period that ended before 26 July 2017 would be waived. This followed HMRC’s investigations into allegations that employers in the social care sector were underpaying the NMW in respect of sleep in shifts. Employers found to have underpaid their staff after that date will face financial penalties in the usual way. HMRC’s enforcement activity in respect of sleep-in shifts in the care sector was suspended until 2 October 2017.
In Focus Care Agency and Roberts, the Employment Appeal Tribunal held that it was unable to lay down a bright line for those tasked with complying with the law and that a “multifactorial test” must be applied to determine whether sleep-in shifts attract the NMW.
The EAT held that the proper approach is to start by considering whether the individual was working during the period for which he or she is claiming/claimed. Tribunals should consider the factual matrix and whether the contract provided for the period to be part of the worker’s working hours – whether an identifiable period was specified during which work was to be done.
The case law authorities identify the following factors as potentially relevant to an assessment of whether a worker is working merely by being present:
(a) the employer’s purpose in engaging the worker – eg if the employer was required to have someone present by regulatory or statutory rules;
(b) the extent to which the worker’s activities were restricted by the requirement to be present and at the disposal of the employer including whether the worker is required to remain on the premises throughout the shift;
(c) degree of responsibility undertaken by the worker. There is a distinction, for example, between the limited degree of responsibility in sleeping in at the premises so as to be able to call the emergency services in the event of a break-in or fire and a night worker in a home for the disabled or elderly where a heavier personal responsibility is placed on the worker to carry out duties that may need to be carried out at night and (d) the immediacy of the need to carry out duties if something untoward occurs.
The following are various scenarios:
On call away from home with no sleeping facilities
In this situation the worker (assuming they are not actually working) is treated as working for the whole of the time that they are available at or near a place of work for the purposes of working and required to be available for such work. This could include cases where a worker is required to sit unoccupied at the workplace, or may leave the workplace but is required to remain near to it. It would not include cases where the worker is allowed to go home or is allowed to use sleeping facilities provided by the employer at or near the workplace.
On call at or near work with sleeping facilities
If the worker is on call (ie required to be available for the purposes of working but not actually working) at or near a place of work, and is provided with suitable sleeping facilities for sleeping, time during the hours they are permitted to use those facilities for the purpose of sleeping shall be treated as working time but only when the worker is awake for the purposes of working.
Time when the worker is asleep, or is awake for a purpose other than work, is therefore not treated as work. Deciding what constitutes work can be difficult in cases where the employee sleeps overnight at the workplace or has their home there.
On Call at Home
If the worker is on call at or near the workplace, the on-call time would generally be treated as working time. However, there is an exception where the worker is allowed to be at home and their home is at or near the workplace. In such cases, the on-call time is not treated as working time and only actual work would be counted.
On 2 November 2017 the Government resumed minimum wage enforcement for healthcare providers after having previously extended its suspension in respect of sleep-in staff. The Voluntary Social Care Compliance Scheme will give healthcare providers that have failed to pay the minimum wage three months to pay back pay to sleep-in staff. Those that opt-out will be subject to HMRC’s usual enforcement regime.
It is important to point out that section 31 NMWA 1998 makes it a criminal offence to:
Refuse or wilfully neglect to pay the NMW
Fail to keep the required records
Keep false records
Provide false records or information
Intentionally obstruct or delay an enforcement officer
Refuse or neglect to answer questions or provide information to an enforcement officer
Given the impact of the Roberts decision, any organisation that requires staff to sleep-in would be well advised to err on the side of caution and pay pending further clarification. If you would like further advice or information about this, please contact one of our team.