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Are your employees sleep-working?

You may sometimes feel, by reference to the standard of their work, that some of your employees are half asleep. However, in the case of Anderson v Jarvis Hotel, the EAT recently had to grapple with the issue of whether or not time spent sleeping at work could be regarded as time spent working, for the purposes of calculating someone’s entitlement to pay.

Mr Anderson was a Guest Care Manager at a hotel. On occasion he was, as part of his job, required to sleep overnight at the hotel. Jarvis Hotel claimed that this was for health and safety reasons, in case of emergencies such as fire and flood. Indeed, on one occasion, Mr Anderson was called upon to deal with a “rowdy guest” when he stayed over at the hotel. On another occasion, as if to underline the importance of Mr Anderson being on the premises, he was disciplined for leaving the hotel for half an hour, when he was meant to be on site.

Despite the above, the hotel argued that Mr Anderson was not entitled to be paid his normal hourly rate of pay, when he was in fact simply sleeping on their premises. The dispute came before the Employment Tribunal, which found in favour of the Hotel. However, on appeal, the decision was overturned. Whilst this case was not brought under the Working Time Regulations or the National Minimum Wage Act, the EAT referred to the decided cases in these areas for guidance. In accordance with such cases, the EAT found that it was incorrect to conclude that the employee had to be involved in some specific activity in order to be regarded as working. In the circumstances of the case, where the employee was required to sleep at the hotel by reason of the needs of the employer, this constituted work for which the employee was entitled to receive his normal hourly rate of pay.

Following this case and other similar cases, you should give careful consideration to any employees or workers who you require to be “on-call” or subject to similar arrangements as those found in the above case. If your employee is required to be at their place of work and “on call” (in the sense that they cannot pursue their own interests and activities), then this is likely to be “working time” for the purposes of any contractual terms, as well as for the purposes of the Working Time Regulations and the National Minimum Wage Act. Sleep well, with one eye and ear open!

For further enquiries please contact Nick Hobden (view full profile) on 01892 701326 or email nick.hobden@ts-p.co.uk.

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