The question for the EAT was whether "sleep in" time (time spent asleep or on call at the employers premises in order to carry out duties if required) was time work for the purposes of the National Minimum Wage Regulations. If it was then workers were entitled to be paid at the appropriate rate for the whole night shift, and not just for the periods that they were awake and carrying out relevant duties.
The three cases had each been heard by different tribunal. Two had resulted in decisions that required the employer to pay workers for the full shift, one only required workers to be paid for the time they were carrying out duties. The unsuccessful party in each case had appealed.
The EAT concluded that there was no one factor that was determinative and that the relevance and weight of the factors would vary with and depend upon the context and circumstances of each particular case. Instead it found that a multifactorial approach was required. In particular it found that the following factors may be of relevance:
The employer’s particular purpose in engaging the worker may be relevant to the extent that it informs what the worker might be expected or required to do: for example, if the employer is subject to a regulatory or contractual requirement to have someone present during the particular period the worker is engaged to be present, that might indicate whether and the extent to which the worker is working by simply being present;
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. This may include considering the extent to which the worker is required to remain on the premises throughout the shift on pain of discipline if he or she slips away to do something else;
The degree of responsibility undertaken by the worker may be relevant: the limited degree of responsibility in sleeping in at the premises to call out the emergency services in case of a break-in or a fire on the one hand can be distinguished from a night sleeper in a home for the disabled where a heavier personal responsibility is placed on the worker in relation to duties that might have to be performed during the night;
The immediacy of the requirement to provide services if something untoward occurs or an emergency arises may also be relevant. In this regard, it may be relevant to determine whether the worker is the person who decides whether to intervene and then intervenes when necessary, or whether the worker is woken as and when needed by another worker with immediate responsibility for intervening.
Correct payment is an important issue - for the worker for obvious reasons but also for the employer who potentially faces criminal sanctions if they get it wrong. While this case confirms there is no easy "yes or no" answer the guidance laid down should assist employers in recognising when pay is due.