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Pay whilst on-call or sleeping at work: am I entitled to the national minimum wage?

View profile for Adam Pennington
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Redundancy guide for employees

Are workers entitled to the national minimum wage when 'on-call', or sleeping, at work? ‘It depends’ according to a recent decision in the Employment Appeal Tribunal (EAT).

The EAT confirmed the following factors can assist in determining whether a person is working (and therefore entitled to be paid) by simply being present:

(i)        The employer’s reason for engaging the worker.  For example, if the employer is legally required to have someone present when the worker is present, this might help establish the extent to which the worker is actually working.

(ii)      The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer may be relevant. For example, if a security officer is required to remain on the premises throughout their shift and leaving earlier could result in disciplinary action, the time spent on site is likely to be considered as working time.

(iii)      The degree of responsibility undertaken by the worker may be relevant. For example a night sleeper in a home for the disabled where greater responsibility is placed on the worker who is expected to perform duties during the night.

(iv)      The degree of urgency to provide the services in response to an emergency may be relevant. For example an on-call plumber in contrast to a vehicle recovery driver. It may be relevant to determine whether the worker is the person who decides whether to assist and then assists when necessary, or whether the worker is woken as and when needed by another worker with immediate responsibility for assisting.

This recent decision demonstrates just how tricky it can be for employers to determine what the correct rate of pay actually is. If employers get this wrong they could be exposing themselves to not only civil sanctions in the employment tribunal, but criminal ones also.

If you engage workers who are ‘on-call’ or sleep on site and are unsure as to what those workers' rights may be, do not hesitate to contact our specialist employment law team on 01616 966 229 for further advice.