Focus Care Agency v Roberts
The Employment Appeal Tribunal (EAT) has revisited the issue of whether workers sleeping at work on ‘on-call’ are entitled to the national minimum wage during that time in three cases that were joined together. The EAT has decided, perhaps unhelpfully in some respects, that it ‘depends’.
Although conscious of the importance of this issue for employers and employees (in no small part because of the risk of criminal sanctions if the employer gets it wrong), the EAT was unable to give a straight 'yes' or 'no' answer. Indeed, it disapproved of the approach sometimes adopted of cases where a worker is working merely by being at the premises, and cases where the worker is provided with accommodation and is simply on-call. Rather, it held, a multi-factorial approach is required - giving considerable weight to the facts of any individual case and thus considerable leeway to an individual employment tribunal to decide.
The EAT did identify four factors. First, the employer's particular purpose in engaging the worker. For example, a regulatory requirement to have someone present at all times might indicate that the worker is working simply by being present. Second, the extent to which the worker's activities are restricted by the requirement to be present and at the disposal of the employer. This may include considering whether the worker could be disciplined if they left their post during the shift. Third, the degree of responsibility undertaken by the worker and the types of activities that they may be called upon to perform. Finally, the immediacy of the requirement to provide services if something untoward occurs or an emergency arises may also be relevant.
In Practice
This case demonstrates that it is vital for employers, who have night staff on call or sleeping site, to obtain advice as to whether they have to pay the national minimum wage for all the on-call or sleeping hours. The four factors identified by the EAT can be set off against each other and every case will need to be looked at individually.
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and the Employment team will be happy to discuss it with you.
