Getting paid for sleeping on the job

Can someone really be paid for working when they’re tucked up in bed fast asleep? Or sitting at home relaxing?

Following recent decisions by the Employment Appeal Tribunal and the European Court of Justice, the answer is yes, although anyone thinking they can suddenly cash in on a cushy number may end up being very disappointed. It all depends on the circumstances.

The EC Working Time Directive defines working time as any period in which a worker “is working, at his employer’s disposal and carrying out his activity or duties”.

The European Court of Justice has helped to fine tune that definition with some key rulings stating that staff who aren’t actually doing anything for certain periods may still be classified as working under the directive if they are “on call” at the request of the employer.

For example, in one case the ECJ ruled that time spent by doctors “on call” at their medical centre constituted working time. A second case took that principle a step further when the court ruled that time on call at a place determined by the employer should count as work time even if the employee was allowed to sleep or relax.

It wasn’t long before these rulings impacted on the decisions of Employment Appeal Tribunal in Britain. One case involved a hotel guest care manager called William Anderson. Mr Anderson was required to sleep over at the hotel so that he would be available to deal with emergencies such as fires and floods.

It was an important part of his job and on one occasion he was disciplined because he left the hotel for half an hour one night during a sleepover period. Mr Anderson believed he should be paid for these sleepovers and took the case to an employment tribunal.

The tribunal ruled against him saying that he was not at the hotel’s disposal during these periods and so therefore was not at work and not entitled to be paid. That decision was then overturned by the Employment Appeal Tribunal which, taking its lead from the European Court of Justice rulings, said it was clear that an employee should be considered to be working if his employer obliged him to be on their premises for their purposes. This applied even if he was asleep.

In another case, the Employment Tribunal had to consider whether a residential care manager was working and therefore not taking rest periods under the meaning of the regulations while she was on call in a flat provided for her by her employers at her place of work.

The care manager worked a four-day week and was expected to provide 24 hour on site cover during this period. She brought a claim on the basis that she didn’t get 11 hours consecutive rest in each 24-hour period, contrary to the Working Time Regulations. Neither did she get an uninterrupted 20-minute break when her working day exceeded six hours.

In a further twist she claimed that, on the basis of her working a 96-hour week, she wasn’t receiving the minimum legal wage.

The woman’s claims were upheld by the Employment Appeal Tribunal. It ruled that all the time she was on-call amounted to working time and could not be classed as rest periods. She did not get 11 hours consecutive rest in each 24-hour period. HH Judge Richardson said she was also entitled to an uninterrupted rest period of at least 20 minutes. She was also entitled to know at the outset that she would not be interrupted during those 20 minutes. This clearly could not be the case if there was a chance that she would be called to an emergency.

The EAT took into account the fact that she was obliged to remain within a short distance from work and carry her mobile phone with her at all times. It meant she was never really off duty.

Having established that all her time at work should be considered as working time the appeal tribunal ascertained that she effectively worked 96 hours a week. When her weekly salary was divided by 96, it was found that her employers were not paying her the minimum wage.

The Employment Appeal Tribunal has now referred the case to another tribunal to decide how these anomalies should be rectified.

The cases have implications for all employers who require staff to be on call at various times. It can be something of a grey area so anyone in any doubt should seek legal advice to avoid difficulties in future.

Sally Laughton is a Solicitor within the Employment Department at Andersons Solicitors in Nottingham, she can be contacted on 0115 988 6736 or email slaughton@andersonssolicitors.co.uk

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