‘Working or not working?’ – that is the question

The last few months have seen continued developments in the vexed question of payment for ‘sleeping rights’. We expressed doubts as to whether the issue was, really, still alive. We were wrong. A decision from the Employment Appeal Tribunal (the EAT) and vacillation from Her Majesty’s Revenue & Customs (HMRC) have left the matter quite open. There are two separate issues:
1. Has the employer committed punishable criminal acts by under paying wages (The Criminal Issue)?
2. Is the employee issue entitled to back pay for under-paid wages (The Civil Issue)?

The Issue
Viewed over an appropriate reference period, have workers been paid less than National Minimum Wage in respect of each hour over the whole period? A subsidiary issue is whether at particular times and in particular circumstances were workers working or not?

The social care context
Social care providers are required to have night time staff cover to meet anticipated emergencies, but who are not required to be awake for a whole shift.
In essence, workers have been paid a fixed fee for availability to work in support but, not required to be awake and on duty for a whole shift.
The question is to decide whether or not workers contractually sleeping or relaxing, but available to work, are actually working although not actively engaged in work.
If yes, National Minimum Wage must be paid. If no, worker and employer are free to agree mutually agreeable terms of engagement.

The Criminal Issue
The Criminal Law rightly provides protection from exploitation for workers bullied into accepting conditions equivalent to modern slavery in working conditions, exploiting vulnerability for profit out of those who are compelled to accept disgraceful terms from exploitative criminals.

However that could not possibly justify the attempt by HMRC to stigmatise and criminalise highly respectable operators who are guilty of no more than following industry practice and relying upon accepted terms of engagement.

Such potential prosecution was highly unlikely ever to be successful. There could have been no public interest in such action as a means to change employment practice.

Workers, largely, welcomed and valued the fixed sleep-in fee, which was valuable and only rarely required attendance at night for which full rate payment was made when actually engaged. The concern, much hailed by some industry observers, was inevitable. This was not government induced generosity but a recognition of the inevitable.

The Civil Issue
This is more straightforward and potentially more damaging to care businesses.
If workers have been underpaid upon a correct interpretation of the law, they are entitled to be compensated with interest. This is a matter for them and their supporters and cannot be conceded by HMRC or dictated by government.

The Employment Appeal Tribunal (EAT) Decision
The decision is that no principles can be established but each case turns on its own facts. Hardly helpful; but we should not blame the EAT. The cases selected were notably poor and do not address the most encountered circumstances in sleep-ins i.e. allowed to sleep or relax unless asked to work when attendance was required. Maybe this was because examples of standard practice were not seriously challenged. All cases failed:
1. The Employment Tribunal had failed to make sufficient findings to justify any decision; a failure of those presently and resisting to ensure the right evidence was presented and understood.
2. The contract of employment failed to establish the terms of sleep-in attendance and payment; an inherent failure to properly establish the context which could succeed.
3. The worker was required to be alert and available for sleeping service users at all times, rather than being not required until called; a case seemingly doomed to failure, and not the standard sleep-in situation.
The appeals were a failure in attempting to create a replicable precedent.

1. There is no real risk of criminal action except against those who are serious exploiters of vulnerability in workers.
2. Many standard sleep-in situations can be sustained. The point will be that workers are not working.
3. However, the risk of failure is very substantial, with awards of compensation going back as much as six years.
4. Manage risk by limiting sleep- ins to established staff whose working rates and number of sleep-ins ensure that over the reference period, minimum wage requirements are not breached.
5. Ensure that terms of employment accurately reflect the payments to and obligations of those waiting to work but not working
6. Potentially give sleeping workers the right not to wake and work. Would loyal staff realistically refuse to help colleagues even if able to refuse? This, of course, requires an alternative and effective staff bank to cover refusals, and begs the question as to why an employer should pay someone who may decline a request to attend.

All is not lost, but, providers need to pay much greater attention to terms of employment which define exactly what is expected and what entitlements follow.

Government cannot protect employers without new legislation and that is unlikely to meet European Law expectations.

Employers, rather than complain that it is unfair that they should be expected by commercial imperative to treat staff in a potentially unfair fashion, would do better to ensure that terms of engagement are clear and transparent and establish exactly what is expected and what remuneration in difficult circumstances will be.

This issue has been revisited by an opinion of Advocate General to the European Court of Justice.

The case concerns “working time” issues for a part time fireman in Belgium. The advocate’s view is that in deciding whether “on call” time is working time is not clear:
1. If the worker is required to be on employer premises the time is working time.
2. However if the worker is allowed to be at a location of choice then the test is the quality of downtime. If the worker is able to do as he pleases until called the time is not working time.

This opinion is bitter sweet for the sleep-in issue. However, in practice many care staff live quite close to their place of work, so it seems that if workers are given the choice to sleep away from the workplace even if they opt to sleep in this might not be working time. The fireman was able to be in post in eight minutes.

CQC might have a view but rapid response should be an answer to them. The Advocate General’s opinion is only an opinion and may be overruled but it is another factor in the debate.

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