Frudd & Anor v The Partington Group Ltd (National Minimum Wage)

For sleep-in shifts, whether a worker is performing time work throughout the shift depends on a realistic and multifactorial evaluation. The tribunal must consider the contract, the nature of the engagement and its factual context. No factor is determinative.

Relevant matters may include the employer’s purpose in requiring presence, restrictions on the worker’s activities, the worker’s responsibility, and the immediacy of any required intervention. A worker may be working merely by being present despite being permitted to sleep and having little to do. National Minimum Wage Regulations 2015, regulation 32 applies only after the tribunal has found that the worker is not working by being present.

Three conjoined appeals concerned entitlement to the national minimum wage for overnight sleep-in duties under the National Minimum Wage Regulations 2015. The common issue was whether workers who slept at their workplace but had to undertake duties if required performed time work for the whole shift, or only when awake for work.

In the Frudds’ case, a tribunal dismissed claims by caravan-park wardens who had to remain on site while on an overnight rota. It treated their situation as analogous to Shannon. In the related appeals, a tribunal found that a care worker performed time work throughout her sleep-in shift, while another tribunal upheld contractual and minimum-wage claims by a sleep-in care worker.

The EAT considered the proper construction and application of regulations 30 and 32, and the adequacy of the individual tribunal decisions.

1. The Mencap and Focus appeals were dismissed. The Frudds’ appeal was allowed and remitted to a fresh tribunal for rehearing.

2. The first question under regulation 30 is whether the worker was in fact working during the period claimed. A worker can be working merely by being present, even while entitled to sleep and despite low or absent activity. Regulation 32 is a deeming provision for a worker who is available but has first been found not to be working. It does not qualify periods of actual work.

3. There is no bright-line distinction based on sleep, core duties, the contractual label “on call”, or a requirement to remain at the workplace. The tribunal must undertake a realistic, fact-sensitive and multifactorial evaluation of the contract, the nature of the engagement and the factual matrix. Relevant factors include the employer’s purpose in requiring the worker’s presence, restrictions on the worker, the degree of responsibility, and the immediacy of any intervention required.

4. The tribunal in Royal Mencap Society v Tomlinson-Blake was entitled to find that the care worker worked throughout her sleep-in shift. Her continuing obligation to remain, listen, exercise professional judgment and intervene immediately, together with the employer’s obligations, supported that conclusion.

5. The tribunal in the Frudds’ case gave no adequate reasons for placing them on the Shannon side of the line. It decided by analogy rather than applying the required evaluation, and made insufficient findings about their engagement and obligations. The only lawful outcome was remission for a complete rehearing.

6. Focus’s written contract superseded earlier oral arrangements and contained no agreed sleep-in allowance. The tribunal was entitled to find no agreed variation or waiver. Silence and continued work, particularly where the worker was unaware of the contractual entitlement, did not establish consent to a detrimental variation.

• Employment Appeal Tribunal: The appeals were heard together. The appeal by Mr and Mrs Frudd was allowed and remitted to a fresh tribunal. The appeals by Royal Mencap Society and Focus Care Agency Ltd were dismissed.
• Employment Tribunal: In the Frudds’ case, Employment Judge Sherratt dismissed the national-minimum-wage claims in a judgment promulgated on 1 December 2015.