Sleep on it

05 Sep 2011

There are many industries that require staff to sleep over at their place of work.  The Working Time Regulations 1998 (WTR) introduced legislation to protect night workers.  Employers must ensure that those working over-night are not required to work in excess of an average of 8 hours per shift.

Since the introduction of the WTR, there has been an ongoing debate regarding what constitutes “on call” time.  In the case of SiMAP v Conselleria de Sanidad y Consume de la Generalidad Valenciana 2003, the European Court of Justice held that all “on-call” time constitutes working time if the employee is required to be in the workplace, rather than at home, even if the worker is asleep at work for some or all of that time.  This means that an employee can be paid for being asleep; nice work if you can get it.


The Employment Appeal Tribunal (EAT), in the case of  Wray v JW Lees & Co 2011, held that the National Minimum Wage did not apply when an employee was required to stay on the premises but not required to work during that time.


Mrs Wray was employed as a temporary manager of a pub.  She was free to leave the pub to run errands and to visit friends outside of her working hours.  However, it was a term of her employment contract that she must “reside and sleep on the premises” and she received the benefit of free accommodation.  Mrs Wray brought a claim arguing that this was working time and that she should be paid the National Minimum Wage whilst she was sleeping.


The Employment Tribunal that heard the case used the definition of working time in the WTR and concluded that Mrs Wray should be paid for the time she was asleep.  The EAT held that this was an error as this definition had no application in the context of a National Minimum Wage claim.


In this case, it was clear the Claimant was not working when she was asleep and that this time did not constitute working hours. The requirement to sleep at the premises did not require the Claimant to do any work during this time.  The EAT therefore ruled that Mrs Wray was not entitled to be paid the National Minimum Wage for these hours.  It is foreseeable that Mrs Wray could have been woken to deal with an issue in the night but this would be unexpected and not part of her usual working hours. 


If something seems to good to be true then it probably is.


An employee cannot expect to be paid just for sleeping, although there sometimes may be a fine line between on-call and off duty time.  If in doubt, the employer could opt for the half-way point of paying an employee if they are woken up from their sleep to deal with an incident related to their work.