Red Tape Parcels-Up Sleeping Time
Working Time – Further Extension to Sleeping on Call
In just the last edition of The Bottom Line, No.45, we reported on the problem of sleeping time being working time for care home workers. Now case law extends it to hotels (and by inference to any “on call” situation where the employee/worker is required to be on the employer’s site).
In Anderson –v– Jarvis Hotels the Employment Appeals Tribunal found that a hotel night manager was entitled to be paid for work even when fast asleep.
This case differs in some respects from our report in the last issue where the claim was brought directly under the Working Time Regulations 1998 and the Minimum Wage Regulations 1999 because this latest claim was brought for unpaid contractual wages.
Anderson was employed as a Guest Care Manager and was required to “sleep-over” in the hotel several nights per week. The primary reason for him being required to “sleep-over” was to cover for emergencies such as fire or flood. A night porter was employed to cover the more routine issues at night. In the approximately nine months in question he was only called out by the night porter on one occasion and he was disciplined for leaving the premises, on one occasion, for about 30 minutes.
His employer argued that it was not working time to be asleep and the frequency of interruptions, once, was de minimis and should be ignored. The Tribunal agreed with the employer. However the Employment Appeal Tribunal did not and overturned the Tribunal’s decision.
They did so because:
| • | Anderson was clearly subject to the employer’s requirement throughout the “sleep-over” periods; |
| • | he had to “sleep-over” as the employer was required to have at least two employees present for health & safety and fire regulation purposes; |
| • | the requirement for Anderson to stay on site was so strict that he was disciplined for breaking it; and |
| • | being present in the premises was, primarily, what he was employed to do during “sleep-over” periods – that was accordingly his work |
.Summary
As Anderson was hourly paid and the EAT knew the number of hours he had slept-over they made an award of the figure they calculated. Consequently although the claim was for unpaid contractual wages he could only succeed if he could show that “sleep-overs” were work for which he was entitled to be paid. The arguments for, both sides, relied on (differing!), in part, interpretations of work under the Working Time Regulations 1998 and, in part, on case law – most of which were reliant on appellate court decisions regarding working time under the Working Time Regulations or Directive equivalents in other EU states.
Clearly (or at least a little bit more clearly!) the courts really only have two choices facing them – was the worker working or resting? Being on call on the employer’s premises, whether asleep or not, is not “resting” in law – so it must be working time.
On-call, away from the employer’s premises and free to conduct your life as you wish during that time has not yet been directly the subject of a senior appellate court decision – take advice if in doubt!