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Payment for Sleeping on the Job

08 March 2012

As the law currently stands, when a person is provided with sleeping facilities at their place of work but remains ‘on call’ throughout their shift, the entire time spent at work will normally count as working time for the purposes of the Working Time Regulations 1998 (WTR). Different rules apply, however, when determining whether or not a worker is entitled to be paid the National Minimum Wage (NMW) during that time.

In a recent case (Wray v JW Lees & Co. (Brewers) Ltd.), Ms Wray worked as a temporary manager for JW Lees & Co., which owns over 170 pubs, filling in when there was a vacancy at one of its premises, which are mostly tenanted. In October 2008, she began providing cover at the White Hart in Mottram. Under the terms of her contract, she was required to sleep there each night.

In May 2009, she was dismissed for redundancy and brought a claim for unfair dismissal and failure to pay the NMW. She contended that she was entitled to be paid for the hours she was required to sleep at her employer’s premises. If those hours were taken into account, her current rate of pay was less than the minimum hourly rate allowed by law.

The claim was decided solely with reference to evidence of the time Ms Wray spent working at the White Hart. The Employment Tribunal (ET) dismissed both of her claims. She appealed against the decision regarding payment of the NMW.

The Employment Appeal Tribunal (EAT) found that the ET had erred in deciding the case under the WTR, which have no application in the context of a NMW claim. The issues should have been determined exclusively by reference to the relevant provisions of the NMW Regulations 1999. However, in spite of this error, the EAT was satisfied that the ET was correct to dismiss the claim.

On the facts of the case, Ms Wray was required to sleep at the White Hart as a ‘minimum security or preventive measure’. Once the pub was closed, she was not required to do any actual work. There were no ongoing responsibilities during the night, as there would be for a worker in a hotel or care home, for example. She was not required to remain at the premises every minute of the day and there was no evidence to suggest she would be disciplined if she left the premises for a short period of time.

The EAT cited South Manchester Abbeyfield v Hopkins as authority that not all hours spent on call count for the purpose of a claim under the NMW Regulations. A person will only be entitled to payment if he or she is awake for the purposes of working.

Ms Wray’s appeal was therefore dismissed.

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