For a long time employers (especially in the care sector) have been grappling with the question of whether employees required to sleep-in are engaged in time work for the whole of their shift or just when they’re on a call-out. The underlying issues concern working time, pay and the National Minimum Wage. The EAT has just considered 3 linked appeals and concluded that “A multifactorial evaluation is required.” In other words each case turns on its own facts.
This isn’t surprising given the complex nature of the relationship between the minimum wage and working time regulations. However the tribunal has helpfully given some guidance which it hopes will go some way to addressing the challenges we all face on this topic. The President of the EAT identifies 4 factors for us to consider:
- The particular purpose of the employee’s engagement. For example, if there’s a regulatory or contractual obligation for someone to be present, that might indicate the mere presence of the employee will amount to work.
- The extent to which the employee’s activities are restricted by a requirement to be present and available for work. A requirement to be present on pain of disciplinary action may point to work.
- The degree of responsibility taken by the employee. The President draws a distinction between someone with a role limited to sounding the alarm and someone required to actively intervene in and deal with a particular situation.
- The immediacy of a requirement to provide services. It might be relevant to consider if the employee is the person who decides whether to intervene then does so, or whether the employee is called out as and when required by someone else with primary responsibility for the first intervention.
I can see that list being expanded in future but it’s a good start.