Abbeyfield Wessex Society Ltd v Edwards (National Minimum Wage)

Whether a sleep-in worker performs time work throughout an overnight shift requires a multifactorial evaluation. The tribunal must begin with the contract, construed in its factual context, and determine realistically whether the worker is working during the disputed period.

No single consideration is decisive. Relevant matters may include the employer’s purpose in requiring presence, restrictions on the worker, the degree of responsibility, and the immediacy of any required response. A tribunal errs if it decides principally by analogy with another case or treats one factor as determinative.

The claimant was employed as a Sleep-in Assistant in sheltered housing. Her contract stated overnight hours and required her to sleep in the house when on duty. She received a flat nightly payment, with additional payment for emergency work.

The Employment Tribunal at Southampton upheld her national minimum wage claim, finding that she performed time work throughout the overnight periods. It relied particularly on the employer’s representation that housing staff were available for 24 hours and distinguished Shannon.

The employer appealed. The central issue was whether the Employment Judge had applied the correct approach to deciding if a sleep-in worker was working throughout the night.

1. Appeal allowed. The Employment Judge gave adequate reasons for finding that the employer represented to prospective residents that housing staff would be on duty for 24 hours. That finding was supported by the claimant’s evidence and the advertisement, was not seriously disputed, and was a relevant factor. No further reasoning was needed for the obvious conclusion that absence from the required overnight duty could expose the claimant to discipline.

2. The Employment Judge did not decide that a requirement to remain on the premises, backed by possible discipline, necessarily established time work. Nor did Shannon lay down a rule requiring dismissal of the claim.

3. However, the Judge failed to apply the multifactorial approach in Focus Care Agency Ltd v Roberts [2017] IRLR 588. The proper starting point was whether the claimant was working, assessed realistically by construing the contract together with the nature and context of the engagement. The terms governing overnight hours and the job description required close examination.

4. The Judge made no satisfactory findings on the contractual terms as operated in practice, including evidence that the claimant performed additional duties. He instead proceeded largely by analogy with Esparon, elevating the employer’s purpose in requiring overnight presence into a principal consideration. That purpose was only one potentially relevant factor. There were also inadequate findings about the claimant’s degree of responsibility and the required response to emergencies.

5. The decision was set aside and the claim remitted for reconsideration by a different Employment Judge. A fresh hearing was appropriate because careful fact-finding and close attention to the contract were required.

• Employment Appeal Tribunal: allowed the employer’s appeal and remitted the national minimum wage claim for a fresh determination by a different Employment Judge.
• Employment Tribunal at Southampton: by a judgment dated 24 March 2016, upheld the claimant’s claim and awarded the agreed shortfall of £24,975.72, with a ten per cent uplift for non-compliance with the relevant ACAS Code of Practice.