In this article, Kathy Daniels, employment law author and lecturer, looks at a recent ruling relating to the payment of the National Minimum Wage during night work, and explains your payment obligations towards night workers.
The National Minimum Wage (NMW) was last increased on 1 April 2017. The current rates are:
Rate (£ per hour)
These are the minimum rates that must be paid to workers for each hour that they work. A question that has faced the courts on more than one occasion is what should be paid if a worker is required to be available at night, but can sleep. Should the worker be paid the NMW for each hour that he or she is available to work, or should the worker just be paid when he or she is actually awake and working? Three cases have recently been considered by the Employment Appeal Tribunal (EAT) addressing these questions.
The first case is Focus Care Agency Ltd v Roberts . This was a case from a residential home. The worker concerned was required to be at work at the home for a nine-hour shift. During this shift she was not assigned any specific tasks and was allowed to sleep if there was nothing that she needed to do. However, she was expected to keep a general eye on what was happening and to do some work if it was needed. As she was the only person working the reality was that she did not get much sleep.
The EAT ruled that she was working throughout the whole nine-hour shift. She had to be on the premises and she had do work if needed. Even if she was asleep she was still required to be present at work and to wake if needed.
The second case is Frudd v The Partington Group . The workers lived on a caravan park and also worked on the park. During the night they could be contacted and required to do some work if needed. They were paid for any work that they did, but were not paid for the whole night if they were not disturbed. As they were asleep at home (because the caravan park was their home) the employer argued that this fell under the exemption in NMW legislation that a worker is not working if they are allowed to sleep at home.
The EAT has referred this case back to the employment tribunal to think again. Although the employment tribunal has supported the view of the employer, the reasoning in coming to this conclusion is not clear.
The third case is Royal Mencap Society v Tomlinson-Blake . This was also in a residential home, and here there were two types of workers. There were “waking” night workers who were required to be awake throughout the night and were assigned tasks to do. There were also “sleep in” night workers who had to be on the premises, but were provided with sleeping facilities. They could go to bed and sleep, but had to work if they were needed by the waking night worker. The “sleep in” night worker was paid £25 per shift, which was less than the hourly rate for the NMW.
The EAT concluded that the “sleep in” night worker should be paid at least the NMW for each hour that he was required to be on the premises.
In reaching these conclusions the EAT has said that the employment tribunal should have more discretion in working out whether someone is entitled to be paid the NMW. In the past, there has been a general approach that a worker is working if they are required to be on the premises. However, the EAT has said that does not do enough to really explore the issues, and the following four factors should be considered.
Why has the employer engaged the worker? For example, if there is a contractual or a regulatory reason that the employer must have the worker on the premises this would suggest that the worker is indeed working.
How much are the activities of the worker restricted by the requirement to be present and available to the employer? For example, is the worker allowed to leave the premises, and return if needed? It would seem more likely that the worker is working if he or she is not allowed to leave. If the worker can go away and come back later, this does not suggest that he or she is working.
How much responsibility does the worker have? If the worker is called to work does this work carry a degree of responsibility? The more responsibility the more likely it is that the worker is working.
To what extent is the worker required to respond immediately if something untoward happens or an emergency occurs? If there is a need for the worker to respond immediately, and therefore the worker must be on the premises, this is more indicative that the worker is working.
So, what can you conclude from these rulings?
If you are legally required to have the worker on your premises (maybe because of regulatory reasons), and that worker is not allowed to leave the premises, it is likely that they are working. This means that they must be paid at least the NMW for each hour that you are requiring them to be at work, even if you allow them to sleep.
Although these cases only looked at the definition of work with reference to the NMW, it is worth being mindful of the Working Time Regulations 1998 as well. If your workers are working during the night then you cannot require them to go straight into a day shift the next day. Workers are entitled to a rest period of 20 minutes after 6 hours of work, 11 hours rest in every 24 hours and 24 hours rest in every 7 days. If they are deemed to be working during the night they would then need to have their 11 hours rest in the relevant 24-hour period.