On-call and sleep-in workers: calculating the national minimum wage

Are on-call or sleep-in workers entitled to the national minimum wage (NMW) for their whole shift, or just the time they are awake and carrying out duties?

Note: this blog is now out-of-date. For an up-to-date discussion of this issue see our blog of 30 July 2018.

Whether you need to pay a worker the NMW for certain hours depends on whether their work is classed as time, salaried, output or unmeasured work. This discussion applies to the most common forms: time and salaried work.

On call at home

If a worker is at their own home, and just needs to be 'available', perhaps to respond to emergencies, you only need to pay them the NMW for hours when they actually carry out work - not the full duration of their on-call time.

But, if a worker is actually 'working' throughout the on-call time at home, then you need to pay them the NMW throughout their shift. This might be the case, for example, for some live-in workers.

On call away from home

You need to pay the NMW for all time when a worker is 'available, and required to be available, at or near a place of work for the purposes of working', if they are awake for the purposes of working.

So, from this it would appear that you don't need to pay the NMW for:

• hours when the worker is asleep, even if they sleep at or near the workplace and you provide sleeping facilities; or
• hours when they are awake for a purpose other than work.

However, if an on-call or sleep-in worker is in fact 'working' rather than just 'available', then you need to pay the NMW for their entire shift, no matter whether they are awake or asleep.

When is an on-call or sleep-in worker 'working'?

Clearly,one crucial question is whether your worker is'working' or just 'available'. The Employment Appeal Tribunal has recently advised (in Focus Care Agency v Roberts) that there is no single factor that will decide this; instead, each case will turn on all of its own facts.

A useful example

The Focus Care Agency decision covered three separate cases, one of which involved a care support worker for the Royal Mencap Society. She provided support to men with autism and learning difficulties, who need 24-hour care in their own homes. During a sleep-in shift, the care worker would sleep in her own bedroom and had no specific tasks allocated, but had to:

• Remain at the house
• Keep a 'listening ear' during the night in case support was needed
• Intervene where necessary to deal with incidents (for example, if the individual was unwell or distressed) or respond to requests for help
• Respond and deal with emergencies.

In reality, the care worker only had to intervene six times over 16 months. However, the Employment Appeal Tribunal found that she was 'working' throughout the sleep-in shift, so was entitled to the NMW throughout. It was swayed by the following:

• Mencap were obliged to have someone on the premises, via both legislation and their contract with the local authority
• The care worker had to remain present throughout her shift; keep a listening ear and exercise professional judgment as to whether or not to intervene, and do so straight away if necessary.

What could be relevant in deciding if someone is 'working'?

As per the Mencap example, whether someone is'working' won't depend on there being a particular level of activity: the fact an employee has little or nothing to do during certain hours doesn't mean they are not 'working'. The Employment Appeal Tribunal set out some potentially relevant factors:

• The terms of the employment contract; but simply using the term 'on call' will not mean a worker is not 'working' throughout - tribunals will look at the reality.
• Why do you have this worker? For example, do you need to have a worker on site to comply with regulatory requirements, or a contract?
• How much isthe worker restricted by the requirement to be present and at your disposal?Do they need to stay on site throughout the shift? Would they be disciplined if they left to do something else?
• How much responsibility does the worker have?
• How quickly does the worker need to respond and deal with any issues? Is the worker the person who makes the decision to intervene, and intervenes when necessary; or are they woken by another worker with immediate responsibility for intervening?

If you need more information on calculating the NMW in your particular circumstances please speak to your usual Brodies' contact, or Workbox subscribers can view our NMW section.