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Employment Law

Legal guidance - compliance - software

Veale Wasborough Vizards , 19 OCT 2015

Sleeping on the job

Sleeping on the job
Helen Hughes
Solicitor, Veale Wasbrough Vizards

The Employment Appeal Tribunal (EAT) held that an on-call night worker who lived at his work place was not entitled to National Minimum Wage (NMW) throughout the nigh when he was asleep.

In Shannin v Rampersad (t/a Clifton House Residential Home), Mr Shannon worked as an 'on-call night care assistant' in a residential care home. He was provided with accommodation in the staff flat on the top floor of the care home. He was required to be in the flat from 10pm to 7am but was able to sleep during these hours, He had to respond to any calls for assistance from the night care worker on duty at the time but was very rarely called upon.

New owners took over the care home and relations between Mr Shannon and the new owners deteriorated. Mr Shannon was ultimately dismissed and then argued that he should have been paid NMW for the full overnight hours, including when he had been asleep.

The Employment Tribunal (ET) found that Mr Shannon fell within an exception under the NMW Regulations because his home was also his workplace ad only time when he was actually awake and working came within the scope of the NMW. He was paid NMW for that time and therefore his claim failed. Mr Shannon appealed.

The EAT dismissed the appeal and found that Mr Shannon was only entitled to the NMW when he was awake for the purpose of working. The EAT differentiated this situation to those where workers were doing their job simply by being present (eg night watchman and telephone operators). Here, mere presence did not in itself entitle a worker to the NMW for the whole shift. The ET was entitled to take into account that there was another night worker on duty and in practice Mr Shannon was rarely called upon to work during the night.

Best practice

It should be noted that this is a particularly fact-sensitive area of law and each case will be decided on its own facts. In this case the fact that Mr Shannon lived in the on-site flat, was only required on rare occasions to respond to requests for assistance and that there was another night worker on duty, were key considerations to the EAT's decision.
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