Esparon (trading as Middle West Residential Care Home) v Slavikovska

Sleep-in time may constitute time work for national minimum wage purposes on either of two bases. The worker may actually be required to perform duties throughout the shift, even if those duties arise intermittently. Alternatively, the worker may be paid simply for being present on the employer’s premises, regardless of whether work is performed.

A particularly powerful indicator is that the employer is required by regulation to have a suitable person present at all times. Whether the sleep-in duty forms part of the worker’s core hours, continues the worker’s principal job, or permits periods of sleep is not decisive where the worker is required to be present for the employer’s purposes.

The claimant was employed as a care worker in a residential care home. She worked sleep-in night shifts and received a fixed payment substantially below the national minimum wage. The Employment Tribunal held that the shifts constituted time work and that the respondent had made unlawful deductions from wages.

The respondent appealed on the basis that the claimant was merely on call, with sleeping facilities available, and that only time spent awake and working counted. The appeal concerned the distinction between actual time work and time deemed to be work under the National Minimum Wage Regulations 1999.

1. Appeal dismissed. The claimant was engaged in time work during the sleep-in shifts and was entitled to be paid the national minimum wage.
2. The Employment Tribunal was entitled to find that the claimant actually performed duties during the shifts, including checking residents at intervals, and was required to do so. This was actual time work rather than time deemed to be work under regulation 15 of the National Minimum Wage Regulations 1999.
3. Independently, the claimant was paid simply to be present at the care home. The respondent was required by regulation to have suitable staff present at all times. That statutory staffing obligation was a powerful indicator that the claimant was working by being present, even if she did nothing or was permitted to sleep.
4. The distinction between “at-work” cases and “on-call” cases is fact-sensitive and difficult to apply. The proper focus is why the employer required the worker to be on the premises. The fact that the sleep-in duty was separate from the claimant’s daytime work, or was not part of her core hours, was irrelevant.
5. The Employment Tribunal was entitled to reject the later evidence suggesting that the claimant had slept throughout the shifts. The evidence did not materially affect the conclusion because sleeping was not decisive where the claimant was required to remain on the premises for the respondent’s purposes.

• Employment Tribunal: held that the claimant had not been paid the national minimum wage for the sleep-in hours and had suffered unlawful deductions from wages. The respondent’s application for review was rejected.
• Employment Appeal Tribunal: dismissed the appeal and upheld the Employment Tribunal’s conclusion on the national minimum wage issue.