Focus Care Agency Ltd v Roberts (Frudd v The Partington Group Ltd)

Whether a sleep-in worker performs time work throughout the shift requires a multifactorial evaluation. No single factor is determinative, including a requirement to remain on the premises, permission to sleep, an employer’s regulatory obligation, or the contractual label “on call”.

The tribunal must first decide whether the worker is actually working by being present, construing the contract in its factual context. Only if the worker is not actually working does Regulation 32 apply to deem availability to be time work, subject to its awake-hours limitation. The issue is fact-sensitive and cannot be resolved by a bright-line distinction based on core duties.

Three conjoined appeals concerned sleep-in shifts under the National Minimum Wage Act 1998 and the National Minimum Wage Regulations 2015.

• In Mencap v Tomlinson-Blake, the Employment Tribunal held that the whole sleep-in period was time work.
• In Frudd v Partington, the Tribunal held that only periods of actual activity counted.
• In Focus Care Agency v Roberts, the Tribunal found contractual and national minimum wage liability for sleep-in duties.

The common issue was whether sleeping employees were working for the whole shift or only entitled to the national minimum wage while awake and performing duties.

1. Appeals. The appeals by Royal Mencap Society and Focus Care Agency Ltd were dismissed. The appeal by Mr and Mrs Frudd was allowed and their claims were remitted to a fresh tribunal for rehearing.
2. Applicable approach. Regulation 30 requires the tribunal first to decide whether the worker is actually working during the claimed period. The contract must be construed realistically in its factual and operational context, including the nature of the engagement, required duties, payment arrangements and any specified working period.
3. Multifactorial assessment. No bright-line rule applies. Relevant factors may include the employer’s purpose in engaging the worker; restrictions imposed by the requirement to remain at the workplace and at the employer’s disposal; the degree of responsibility undertaken; and the immediacy of the obligation to respond to an emergency. Each factor has such weight as the particular facts require.
4. Being permitted to sleep, or having little or nothing to do, does not prevent a worker from working merely by being present. A regulatory or contractual obligation requiring presence is relevant but not determinative. Contractual labels such as “on call” are not terms of art and cannot determine the issue.
5. Regulation 32 is considered only if the tribunal concludes that the worker is not actually working by being present. It then treats availability at or near the workplace as time work only during awake periods for the purposes of working, subject to the regulation’s other conditions.
6. The Frudd Tribunal had relied on analogy and had not explained the factors leading to its conclusion. It had also failed to make material findings about the obligation to remain on site and the extent of the claimants’ responsibilities. A fresh hearing was therefore required.
7. In Focus, the written contract expressly superseded earlier oral arrangements and contained no sleep-in allowance. Silence after receiving payslips did not itself establish contractual variation, and the finding that the claimant was unaware of his contractual entitlement supported the conclusion that there had been no waiver.

• Employment Appeal Tribunal: Appeals by Royal Mencap Society and Focus Care Agency Ltd dismissed. Mr and Mrs Frudd’s appeal allowed and claims remitted to a fresh tribunal.
• Employment Tribunals: The Mencap Tribunal found the whole sleep-in shift was time work; the Frudd Tribunal dismissed the claims; and the Focus Tribunal found contractual underpayment and national minimum wage liability.