08 September 2011 #Employment
Two cases have been reported concerning staff sleeping on the job and their rights to receive the NMW for this time. In both cases, the EAT highlighted the danger of confusing ‘work` for minimum wage purposes with ‘working time` under the Working Time Regulations 1998, as the tribunal in both cases appears to have done.
1. Sleeping pub manager
The EAT has held in Wray v JW Lees & Co that time spent by a pub manager sleeping on the employer`s premises overnight, should not be taken into account for the purposes of his National Minimum Wage claim.
Mr Wray was not working during this time (he was sleeping) and would not be required to do any work overnight. This could therefore be distinguished from cases involving night watchmen or overnight carers in a residential home, who would have responsibilities throughout the night.
2. Casual driver`s overnight stays
In Baxter v Titan Aviation Ltd the EAT has held that lay-over time, which required a worker to stay overnight at a given location ready for work the next day, did not constitute ‘work` under the NMW Regulations.
The EAT found that Mr Baxter was not working during his lay-over periods. He was not at his place of work, was performing no tasks and had no responsibilities. As in the case above, this could be distinguished from night watchman. The only reason for Mr Baxter`s lay-overs was that he could get to work in the morning. Whilst this could be compared to "travelling time" under the NMW Regs, this could still not be treated as time during which Mr Baxter was working under the provisions in question.
Likewise, where workers are supplied with ‘suitable facilities for sleeping` they are treated as working only when awake for the purpose of working. It would be up to Mr Baxter how much of any lay-over period he spent asleep. However, it he was awake for any of this time it would not be ‘for the purpose of working`.