Employment Flash - 28th May 2010
"I'm busy doing nothing, working the whole night through...". Being paid for sleeping on the job because being on call overnight is "working"
Hughes v Graylins Residential Home [2008] UKEAT 0159_08_0310
H claimed that there had been a breach of the Working Time Regulations 1998, SI 1998/1833 as she had not been paid for rest periods having worked at least 6 hours at a stretch and that she was not provided with a rest period of at least 24 hours in any 7 day period. H, a part-time care worker was engaged on salaried hours work (see National Minimum Wage Regulations 1999, SI 1999/584, reg 4), worked an 8 hour week but was on call for a further 77 hours a week, 9pm - 8am, 7 days a week. For the better performance of her on call duty H resided at a flat provided by G at a subsidised rate.
Essentially a restatement of MacCartney v Oversley House Management [2006] IRLR 514, as a worker who was on call at a place where they were required by their employer to remain H was working even when she was sleeping or resting. H was also entitled to uninterrupted 20 minute rest periods for every 6 consecutive hours she worked (reg. 12, WTR), notwithstanding that she may have been asleep for most or all of such a 6 hour period.
H was entitled to be paid accordingly for the on call hours, though for the periods of sleep she would not be entitled to be paid at the minimum wage rate under the NMWR (reg 16(1A)). The Employment Tribunal would have to determine the quantification in relation to that.
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