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Sleeping on the job

No, not me, dozing at my desk on a Friday afternoon (honest) - but the latest in a long line of cases around minimum wage and working time issues for night shift workers. 

Esparon t/a Middle West Residential Care Home v Slavikovska (UKEAT/0217/12/DA) relates (as so many of these cases do) to pay for night shifts at a care home.  The claimant was employed as a care worker at the respondent’s residential home - she also had a flat there.  She was required to work a number of ‘sleep-in’ night shifts and be available for emergency purposes, on top of the day work she carried out.  There were statutory provisions requiring the respondent to ensure that at all times suitably qualified and experienced people were working at the home in order to protect the health and welfare of service users.  Ms Slavikovska maintained that she was required to carry out certain duties during the night shift: the respondent disagreed, saying she was not required to carry out any duties save in emergencies, and that she was permitted to sleep in the facilities provided.  The claimant received a lump sum for each sleep-in shift, but at a rate substantially less than the NMW.  She claimed that she was entitled to be paid the NMW for all the hours she was on the premises at night because (a) she was required to work during her sleep-in shift and (b) she was entitled to be paid simply for being present at the premises.

The EAT upheld the tribunal’s decision in her favour, on both of these grounds.  It noted that the existing authorities were difficult to reconcile (and, having tried, I can confirm that they are!) - but that in this case, the tribunal had been correct to find that she was entitled to be paid simply for being on the premises - and accordingly that her presence there constituted time work for the purposes of the NMW.    The judgment goes on to confirm that an important consideration in determining whether an employee is carrying out time work by reason of his or her presence on the premises ‘just in case’ anything is required, is why the employer makes that requirement in the first place.  In this case, because the requirement was due to a statutory obligation, that was a powerful indicator that the employee was being paid simply to be there, and was thus deemed to be working regardless of whether or not any work was actually carried out.

The case can therefore be distinguished from earlier cases such as City of Edinburgh Council v Lauder (UKEATS/0048/11).  In that case, sheltered housing wardens, required to be resident in their tied houses for specific hours and ‘on call’ outside their normal working hours, were held not to be entitled to the NMW for the whole of their on call time.  Whilst they were paid overtime for any work they did do during on call time, the EAT found they were not performing salaried hours work whilst on call: they were not expected or required to be awake unless called on to work during those hours.  There EAT drew a clear distinction between ‘on call’ cases, where the worker’s main job is separate from and not carried out at the same time as the ‘on call’ period - ie, where the night time work is not the essential nature of the worker’s job (in which case there is only a NMW entitlement for hours actually worked whilst on call) and ‘working’ cases, where the worker is required to work through the night as part of their core contractual duties.  In the latter case, the worker is considered to be working throughout the whole period for the purposes of calculating NMW entitlement (even if tasks only come up intermittently, and even if he or she is asleep for the rest of the time).  

Slavikovska has more in common with the facts in the Rossiter case in which the claimant was a ‘night sleeper’, working 10pm to 8am to ensure the security of a care home. He had to monitor health and safety and would be accessible should any emergencies occur.  He was entirely at liberty to sleep, except when his duties required him to be awake (eg if he heard noises requiring investigation).  Elias J found in that case that the claimant was plainly at work for the whole shift and that whilst ‘we recognise there is some artificiality in saying that someone is working when he is sleeping’, it would be ‘wholly inappropriate’ for the employer requiring an employee to be present for a certain number of hourse to pay him only for a small proportion of those hours.

The distinction is not always an easy one to draw, as the judge in Slavikovska recognised. How does one distinguish between those ‘at work’ cases where the employee is paid simply to be there ‘just in case’ and those ‘on call’ cases where he or she is required to be there on call and yet is not deemed to be working the whole time?  Personally, I find the very similar facts and very different conclusions in some of the cases on the subject very difficult to grasp. Perhaps in part because of this, the judge in Slavikovska seems to have seized on the distinguishing factor in this case - the ‘reason’ the employee was required to be on the premises.  The fact that there was a regulatory requirement for someone to be present on site was found to be a strong indicator that the person concerned was being paid simply to be there and thus should be deemed to be working whether or not work is actually carried out.   Reading the judgment, one feels that there may have been a sense of relief on the judge’s part to be able to pluck this distinguishing rabbit out of the hat.  

There is an entertaining (and irrelevant) coda here.  At the employment tribunal hearing, the claimant’s partner (Mr Carr) had given evidence in her support.  Since that date, they had apparently broken up, acrimoniously, by the sound of it.  No doubt spurred on by high-minded pursuit of justice, Mr Carr proceeded to write to the respondent indicating that the claimant had ‘recently’ confided in him that she had not worked through each night shift and had not remained awake.  As such, he felt her claim was ‘disingenuous and…an abuse of the legal system’ which he was duty bound to bring to the respondent’s attention.  The respondent duly applied for a review of the original decision: the employment judge found there were serious question marks over Mr Carr’s motives and credibility, and in any event the ‘new’ evidence was not material, since the tribunal had concluded that whether or not the claimant slept during the night shift was irrelevant.  So, Ms Slavikovska can sleep peacefully, and be paid for so doing.

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