Are they entitled to the national minimum wage ( NMW) for the whole shift, or just the time they are awake and carrying out duties?
Many of you will employ resort staff, who sleep on site such as in hotels and chalets looking after guests. These workers are only entitled to receive the NMW for any sleep in work they undertake that constitutes working time. Difficulties arise for employers in determining whether an individual asleep, for part or all of their shift, is actually working during this time. Determining this can cause real issues for employers, not least because if they get it wrong, they can be fined and also face criminal sanctions.
The Employment Appeal Tribunal has provided some useful guidance in the cases of :
- Royal Mencap Society V Tomlinson Blake
- Focus Care Agency v Roberts
- Frudd v The Partington Group
When is a sleep in worker “working”?
As a result it is important that employers who employ such employees give consideration to the following:
Why is the resort worker required to be on call or carry out sleep in duties?
If the resort worker is engaged to meet a legal or contractual obligation owed by their employer to their customers then the resort worker is likely to be working, even in circumstances where they have little or nothing to do during certain hours.
The extent to which the resort worker’s activities are restricted?
If the resort worker is told that they must remain on the hotel/resort premises throughout their shift and, for example, could be subjected to disciplinary action if they do not, it suggests that they are working throughout their shift, again even if they do little or nothing during the shift.
The level of responsibility the resort worker holds?
If a resort worker is required to remain on the resort/hotel premises, for example, to deal with calling the emergency services, they will usually be considered to have a lower level of responsibility than say for example a resort worker, required to deal with any personal duties, such as to a guest during the night. The greater the responsibility held, the more likely the individual will be working throughout their shift, even if they occasionally have to intervene.
Is the resort worker primarily responsible to provide services in an emergency?
If they are responsible for providing care or assistance to deal with emergency situations, they are likely to be working throughout their shift, even if there is no emergency. However a resort worker, who is woken to assist a colleague who has the primary responsibility for dealing with emergencies, may only be entitled to the NMW for the work that they do.
This is not an easy area to determine and each situation is fact sensitive. It therefore will fall on employers to make a call (with our guidance) on whether a resort worker is entitled to be paid whilst they sleep.
In conclusion , sleep in workers that are not working during their sleep in shifts are only entitled to be paid the NMW, if they are required to work during this time.
Please feel free to contact one of our employment team should you require further guidance.