Working Time Updates for Sleep-In and On-Call Shifts
Key Contact: Claire Knowles
Author: Adam McGlynn
Keep Calm and Sleep In
The Supreme Court has handed down their long-awaited judgement for the Royal Mencap Society v Tomlinson-Blake case and the message to the care sector is to keep calm and sleep in. A ‘sleep-in’ shift, i.e. a shift where the worker is permitted to sleep unless needed, is not considered ‘time work’ or any form of ‘work’ for the purposes of the National Minimum Wage Regulations. As such, the worker will not be entitled to the national minimum wage for sleep-in shift hours where they are not ‘awake for the purposes of working’, even though they may be conducting the sleep-in shift under their employer’s direction.
If the worker is actually required to work during the shift, that time will count as ‘time work’ and be subject to national minimum wage requirements. However, the Supreme Court clarified that a requirement to work at some point during the shift would not automatically apply the national minimum wage rules to the entirety of the shift. As such, only that time spent awake for the purposes of working will need to be paid according to national minimum wage rules.
Standby for ‘On-Call’ Clarity
The ECJ have provided some clarity on the concept of ‘working time’ while the worker is ‘on-call’/ ‘on standby’. In the UK, time spent on-call can be considered working time under the Working Time Regulations if the worker is still considered to be carrying out duties and at the employer’s disposal. Case law has previously confirmed that a requirement to be physically present at a specified location and a requirement to provide services immediately, if required, should both be taken into account when considering whether on-call time is working time.
The two recent ECJ cases of DJ v Radiotelevizija Slovenija (DJ) and RJ v Stadt Offenbach am Main (RJ) have provided greater clarity on how national courts should assess these situations. In DJ, the worker was allowed to use accommodation provided by the employer during on-call time, but there was no requirement to do so. Additionally, while the worker needed to be contactable by the employer during the period, they did not need to be available for immediate work and would have an hour to make their way to their workplace if they were required to do so. By contrast, in RJ the worker was a firefighter who, on receiving a call while on standby, would need to be able to reach the town boundary, in uniform, and with their service vehicle, within 20 minutes. In both cases, the ECJ noted that it would be for the national courts to reach their own conclusions but provided the following guidance as assistance:
- Where a worker is required to be physically present at a place other than the worker’s home and remain available for work at the employer’s instruction, that on-call time would be working time in its entirety as the worker is required to remain apart from their personal and social life, with little freedom to manage their time.
- This principle may extend to on-call time where the worker is permitted to be at home by taking into account the constraints imposed on the worker and whether this has an objective and significant impact on their ability to pursue personal and social interests.
- The constraints considered could be imposed by national law, collective agreement, or directly by the employer but self-imposed constraints arising from the worker’s free choices should not be considered. For example, the ECJ suggests that a requirement to return to the workplace or, by contrast, the freedom to remain at home when performing the required duties should be considered but the location of the worker’s freely-chosen residence should not be.
- The frequency of the occasions a worker is required to work while on-call may be taken into account, to the extent that more frequent calls will have a greater impact on the worker’s personal and social pursuits. However, this factor alone should not be definitive and should only be used to inform the overarching principle.
The guidance provided by the DJ and RJ cases were both handed down after the end of the Brexit transition period, however, it is likely that they will be persuasive when assessing working time under the UK’s Working Time Regulations.
If your business uses ‘sleep-in’ or ‘on-call’ shifts, please feel free to contact our Employment department for further guidance on National Minimum Wage and Working Time rules and how they apply to your workers.