Many care providers across the UK have had a difficult 2017, trying to balance the needs of the service users with the rights of the staff to receive National Minimum Wage (NMW) when undertaking sleep-in shifts. For many years it was an accepted norm within the care industry that employees were paid a flat rate, for sleep-in shifts of £20-£30. It came as a shock to many within the care sector when they realised that this practice was in breach of the regulations relating to NMW.

Any employer failing to pay NMW runs the risk of their employees either filing a complaint with the employment tribunal, or pursuing the matter in court or reporting them to HMRC.

In July we informed you here that the Government announced they would instruct HMRC not to enforce penalties against anyone who breached the NMW regulations before 26 July 2017. This slight reprieve was initially only until October 2017 but has since been extended for a further month. What this means is that any care provider in breach of the NMW before 26 July 2017 will now only have to pay employees any underpayment of wages for the relevant period. Any associated fines arising before 26 July will not be enforced by HMRC.

In the recently reported Employment Appeal Tribunal case of Abbeyfield Wessex Society Ltd v Edwards, a Dorset based charitable organisation offering sheltered shared accommodation for residents over the age of 55, was found to be in breach of the NMW regulations.

The organisation employed the claimant Ms Edwards as a sleep-in assistant, from February 2012 to June 2015. The residents which she was responsible for each had their own room which they rented from the organisation. During the day the residents received numerous support services to assist them with daily living. However, during the night Edwards was to provide overnight sleeping-in cover and was to respond to emergencies of the residents as and when they arose. She was expected to be flexible and perform other duties not specifically identified in her job description but which were reasonable and within her abilities. The statement of terms and conditions of employment was quite explicit in relation to these matters.

Edwards was successful at the first Tribunal and a judge ruled in her favour on the basis that the employer had failed to pay her national minimum wage for a sum totalling £24,975.72. A 10% uplift was also applied to the award as a consequence of the employers failure to comply with relevant ACAS Code of Practice.

The employer appealed the decision and argued that the employment judge had erred in his application of the law.

The decision

The EAT held that the employment judge had erred in his application of the law as he failed to do the following:

• He failed to use the statement of terms and conditions of employment as the starting point to  determine the facts of the case;
• he did not make any satisfactory determination of what those terms were, or
• he failed to consider how the statement of terms and conditions of employment operated in practice;  and
• he proceeded to make an analogy between the current case and a decided case, rather than  determining what the facts of the present case were.

The EAT held in its judgement that when Tribunals consider the issue of whether an employee is working during a sleep-in shift they should consider the guidance provided by Judge Simler P in Focus Care Agency Ltd v Roberts (2017):

• “the contract must be considered together with the nature of the engagement and the work required  to be carried out.
• Tribunals should consider whether the contract provides for the period in question to be part of the  employee’s working hours
• Depending on the facts it may be relevant to consider whether the contract provides for pay to be  calculated by reference to a shift or by reference to something else,
• Whether an identifiable period is specified during which work is to be done.
• The fact that an employee has little or nothing to do during certain hours does not mean that he or  she  is not working.
• No particular level of activity needs to be equated to the work
• An employee can be working merely by being present even if they are simply required to deal with  something untoward that might arise, but are otherwise entitled to sleep and even where an  employee  has never had to wake and deal with an untoward matter
• No single factor is determinative and the weight each factor carries (if any) will vary according to the  facts of the particular case.”

The following factors were also considered as relevant issues to consider in determining whether a person is working by being present:

• What is the employer’s purpose in engaging the worker?
• Are they there to comply with the employer’s regulatory or contractual requirement to have someone  present?
• Is the worker’s activities restricted during the period they are present?
• Is the worker required to remain on the premises throughout the shift?
• Will the worker be disciplined if they leave the premises during the shift?
• Does the worker have a great degree of responsibilities whilst present?
• Is the worker expected to act promptly in provided services during the night or do they pass problems  and decision making to another?

The employment Tribunal judge failed to apply the guidance handed down in the Focus case mentioned above. He also failed to consider any of the questions outlined in the paragraph above. Consequently, the Employment Appeal Judge found in favour of the employer. The case has been referred to a fresh Tribunal to consider the above guidance and questions.

If you require further advice on business law matters, you may wish to join our community; on elXtr we have guides and documents to help you navigate everyday business issues, including employment and health and safety issues.

If you have access to the legal helpline and want to discuss your specific circumstances with a qualified solicitor or barrister, please get in touch with them.

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