Our second case is actually a cluster of three cases about the national minimum wage. Previous case law suggests that employees are entitled to the minimum wage for time when they are at the employer’s premises even if they aren’t working. Whilst the facts of each case are different the question in all three was:
Are employees entitled to the national minimum wage whilst on call or sleeping at work?
In the first case, the Claimant had to do sleep-in shifts where she was the only member of staff in and had to be vigilant to the needs of patients, this meant she did not get that much sleep. The ET held that as she was effectively constantly on call she was entitled to the minimum wage.
In the second case, the Claimants lived on site at the Respondent’s caravan park and were only paid for call outs that arose during the night. As the Claimants were at home, the ET held they were only entitled to the minimum wage whilst actually working.
In the third case, there were two types of night worker, waking and sleep-in. Waking had to be awake throughout the night and sleep-ins were on site but only had to work if called upon. Sleep-in workers were paid a flat rate of £25 a night whereas waking were paid the minimum wage. The Claimant’s contract stated that waking and sleep-in workers would be paid the same and the ET agreed they should both be paid the minimum wage.
All three losing parties appealed and the EAT held that there was no yes or no answer to sleep-in workers being entitled to the NMW. It rejected the previous approach that any time on site meant the employee was entitled the NMW.
Instead it stated Tribunals should have more discretion to decide whether someone was entitled to the NMW and laid four factors to decide future cases on the merits of their own facts. These factors were:
(i) The employer’s particular purpose in engaging the worker
(ii) The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer
(iii) The degree of responsibility undertaken by the worker
(iv) The immediacy of the requirement to provide services if something untoward occurs or an emergency arises
The takeaway point:
The answer today is, maybe, the four criteria above lay out clear indicators of whether an employee is or isn’t entitled to the NMW during a sleep-in shift/on-call work. Employers of on-call or sleep-in workers will need to consider these points when determining what pay the shift entails.