Whether an employee required to sleep on their employer's premises is still 'on the clock' was the issue in a National Minimum Wage (NMW) case decided by the EAT (Wray v J W Lees & Co (Brewers) Ltd  UKEAT 0102-11).
In this case, Ms Wray was employed as a temporary pub manager on a series of her employer's premises. She was provided with free accommodation at each pub and it was a term of her employment that she “reside and sleep on the premises except on those occasions when the consent of the Area Manager has been obtained to her absence.” The question on appeal was whether the time spent by Ms Wray in the premises overnight was time work for which the NMW should have been paid?
Unfortunately, the original Tribunal had used the legislation and case law related to the Working Time Regulations, not the Minimum Wage, in reaching its conclusion. The EAT correctly drew on the National Minimum Wage Regulations 1999. The NMW Regulations do not specifically define “work”; an employee's working time is categorised as either time work, salaried hours work, output work, or unmeasured work. As Ms Wray was paid monthly the EAT used the legislation referring to 'salaried hours work'.
Regulation 16 allows that where a “worker is available or near a place of work for the purposes of doing salaried hours work and is required to be available for such work” this should be treated as being “working hours” for which the NMW should be paid. However, subsection 1A of that Regulation states that where “a worker by arrangement sleeps at or near a place of work and is provided with suitable facilities for sleeping, time during the hours he/she is permitted to use those facilities for the purpose of sleeping shall only be treated as being salaried hours work when the worker is awake for the purpose of working.”
The EAT found there was nothing in Ms Wray's terms and conditions that obliged her to work once she had completed her duties at night. The accommodation provided was effectively her home, albeit a temporary one. Her being provided with somewhere to sleep could not be compared with accommodation provided for sleeping over or on call purposes. She was not required to undertake any duties for her employer whatsoever until the pub re-opened the following day.
Therefore, despite that Ms Wray was required to sleep on the premises as a “minimum security measure” this did not mean she was engaged in 'salaried hours work' during those hours. The only matter Ms Wray would have to attend to was if someone broke in to the premises, or a fire broke out. Except all she would have been expected to do was to call the emergency services; something she would still have done were she in her own home. Ms Wray was not in the same position as that of a night-watchman, or a night-sleeper in a residential care home who has a responsibility throughout the night for those present in the home.
I cannot help but think that if the employee's terms relating to their sleeping on the premises had been expressly stated in line with the NMW Regulations, there would have been no claim against the employer. As it was, the EAT had to base its judgement on what was the actual practice between the parties.
UNISON (the public service union) has published a useful information sheet concerning “sleeping in” arrangements (a common practice in the care sector, security, and hotel industries). Many such workers are required to sleep in at or near their place of work and are often paid an allowance for doing so. But does this “allowance” comply with the NMW Regulations? The UNISON information sheet contains a useful review of the case law together with the results of a survey they carried out into the pay and conditions for workers who sleep in at work.