Paid to sleep? The NMW and being ‘on-call’

Posted on May 30, 2017

Currently, any time an employee spends at their place of work ‘on-call’ counts as work. If you you’re not required to stay within a certain place decided by your employer then your time on call doesn’t count as working time until you start work.

However, there seems to be a new nightmare for employers after this issue was raised in three cases heard at the same time (with the lead case, Focus Care Agency v Roberts). The question asked was are workers entitled to the national minimum wage when ‘on-call’, or sleeping, at work? The EAT rather unhelpfully decided ‘it depends’.

It was considered whether three tribunals had correctly decided whether ‘sleep-in’ time counted as ‘time work’ for the National Minimum Wage Regulations. Whilst the EAT disapproved of the approach adopted of cases where a worker is working by being at the premises, and cases where the worker is provided with accommodation is simply on-call.

Instead, weight should be given to the facts of any individual case and leeway to an individual employment tribunal to decide. There are 4 factors to consider, which are:

  1. The employer’s purpose in engaging the worker
  2. The extent to which the worker is restricted by the requirement to be on the premises
  3. The degree of responsibility undertaken by the worker
  4. The immediacy of the requirement for the worker to provide services if something occurs or an emergency arises.

As an employer who requires workers to be on call, make sure you consider these factors. The principles can be applied differently to different situations, and if you ensure these are followed hopefully you won’t have any sleepless nights.