Sleeping on the job
As you know, you must pay staff for the hours they work. But following a new case, does being “at work” necessarily require an employee to even be awake?
What is “at work”? It’s a safe bet that as far as you’re concerned, the phrase “at work” implies that an employee is doing something to justify being paid. However, an employee has now argued that he should be paid even whilst he’s literally asleep on the job.
A cushy number. In Anderson v Jarvis Hotels, Anderson (A) was employed as a Guest Care Manager. For safety reasons, he was required to spend several nights a week sleeping over at one of his employer’s hotels in Edinburgh. This was in case of an emergency, such as a fire or flood. However, during a nine-month period, A had only been disturbed once and that was to deal with rowdy guests.
Unpaid wages claim. A’s employment contract entitled him to be paid an hourly rate, so he claimed for the periods that he had been required to sleep at the hotel. Unsurprisingly, his employer argued that this “on call” time (where the likelihood of having to work was remote), wasn’t working time for the purpose of payment under his employment contract. The tribunal agreed and dismissed his claim.
Still at work. A appealed to the Employment Appeal Tribunal (EAT). It upheld his claim on the basis that his contract of employment obliged him to be present at the hotel, e.g. for safety reasons, even though he only lived a ten-minute walk away. This requirement was reinforced by the fact that A had been disciplined for leaving the hotel on one occasion in the early hours without permission.
Tip. If you currently require someone to be on the premises, e.g. in a care home, consider if it’s really necessary. Do this by looking at the hazards and the likelihood of them occurring, and consider if they could be effectively managed by those who live close to the office and who could be on-call at home (without pay). Alternatively, if you feel that an on-site presence is necessary, look at creating specific duties to be carried out by the post-holder during this time.
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