Sleeping on the job

In the case of Shannon v Rampersad and another (t/a Clifton House Residential Home) the Employment Appeal Tribunal (EAT) concluded that an on-call night worker was not entitled to the National Minimum Wage for all of the hours of his night shift; only those when he was actually working.  Nor was he entitled to accrued holiday pay for earlier years when he was not prevented from, but did not ask for leave.

By way of background Clifton House is a residential care home for the elderly in Coulsden, Surrey. At the care home there is a top-floor flat for staff known as “the studio”. Mr Shannon commenced employment there in 1993 as an “on-call night care assistant”. He was required to be in the studio from 10pm to 7am and was allowed to sleep there during those hours. He was required to respond to any request for assistance by the on duty night care worker at the care home. In return Mr Shannon was provided with free accommodation in the Studio with all utilities provided, together with a payment eventually rising to £90 per week.

When the care home was bought by the Respondent they asked Mr Shannon to sign a contract of employment that included a wider range of duties. Mr Shannon also signed a tenancy agreement agreeing to pay £120 per week in rent for the studio. His weekly pay was increased from £90 to £210 per week to cover the rent. Relations between Mr Shannon and the new owners became strained and he was dismissed in late 2013.

Mr Shannon brought a claim for £239,490 in respect of back-payment of National Minimum Wage since its introduction in April 1999. The employment tribunal concluded that Mr Shannon was not working throughout each night shift and was only working on the rare occasions when he was called to do so by the night care worker on duty. The employment tribunal found that the exception set out in the National Minimum Wage Regulations 1999 applied and only time spent when the worker was awake for the purpose of working counted as salaried hours. Mr Shannon’s home, the studio, was at his place of work and the time in question was spent at home so Regulation 16(1A) applied. On the limited occasions he worked he was paid the National Minimum Wage and thus his claim failed.

The Claimant had also made a claim for entitlement to accrued holiday pay under the Working Time Regulations 1998 following termination of employment. Since the Regulations came in to force in October 1998 the Claimant had not taken any holiday. Mr Shannon sought to argue he could carry forward his paid leave entitlement. The employment tribunal concluded that when a worker could have requested paid leave but decided not to, they cannot then carry forward their past entitlement to pay in lieu of holiday pay, when leaving the job.

Mr Shannon appealed the decisions to the EAT, which were subsequently rejected. His honour Judge Clark, sitting alone, concluded that the Claimant was required to be present in the studio between the hours of 10pm and 7am every night but only the times when he was awake for the purpose of carrying out work counted as working time. The EAT referred to existing case-law noting the difference between cases where a worker is working by being present at an employer’s premises and permitted to sleep (such as a night watchman) and workers who were provided with sleeping accommodation and were merely on call (such as a pub manager or housekeeper). The EAT concluded that as there was a night worker already on duty at the care home, and Mr Shannon was rarely called upon, he fell in to the latter category.

The EAT similarly agreed with the employment tribunal’s finding that Mr Shannon was not able to carry forward untaken holiday pay each year. There were no reasons beyond his control making him unable to take annual leave and Mr Shannon was aware of his rights to take it due to his “day job” as a driver. The EAT concluded that Mr Shannon could have taken leave in the relevant holiday year but chose not to do so and thus lost the right to carry forward annual leave pay prior to the holiday year in which he was dismissed.

This case is a good example of how fact-sensitive an employment tribunal claim can be. The case also illustrates that it cannot always be said that undertaking a sleep-in-shift will entitle a worker to be paid National Minimum Wage for that entire shift and all circumstances will have to be considered.