Katy Wedderburn looks at the multi-factorial test used to determine whether an employee is working in “sleep-in” cases.

In Focus Care Agency Ltd v Roberts , the Employment Appeal Tribunal (EAT) considered the difficult issue of whether employees who “sleep-in” in order to carry out duties if required are entitled to be paid the National Minimum Wage (NMW) for their entire shift or only when they are awake and carrying out their relevant duties. The EAT outlined that a multi-factorial approach should adopted to determine whether the individual is “working” by being present. The facts of each appeal are not relevant to this approach, however if you would like further information on the appeal click here.

The multi-factorial test clarifies that no single factor is determinative and the weight each factor carries (if any) will vary according to the facts of the particular case, including:

1. The employer’s purpose in engaging the worker and what the worker is expected or required to do.

2. The restrictions placed on the worker’s activities during the “sleep-in” period. If the worker would face disciplinary proceedings if they did not remain on the premises throughout their shift, they are more likely to be entitled to NMW for the full shift.

3. The degree of responsibility undertaken by the worker. For example, if the worker is at home and only needs to respond to an emergency situation e.g. if there is a fire or a break-in, it would be less likely that they are “working” whilst asleep. In comparison, a worker sleeping in a home for the disabled has a heavier personal responsibility for the duties to be performed during the night.

4. The immediacy of the requirement to provide services in the event of an emergency. If the worker is the person who decides whether to intervene and then intervenes they are more likely to be working whilst asleep. A worker who is allowed to sleep and is only woken when another worker needs their help is less likely to be entitled to NMW whilst asleep.

Although this multi-factorial approach provides Tribunals considerable leeway in deciding future cases, it does not provide employers a definitive answer in deciding the rate of pay for employees who work “sleep-in” shifts. This is particularly relevant to employers who need to provide a service, especially those with statutory obligations to provide staff in the case of emergencies or for constant care services.