It said there was no definitive answer as each case would depend on its individual circumstances. However, it did highlight some of the factors that would be relevant when making a judgment.
Reason for engaging the worker
This would examine the regulatory or contractual obligation for the worker to be present on the site while on call or sleeping.
Restrictions of the worker’s activity
It would be important to ascertain whether the worker was required to remain on the premises during the period in question or had restrictions placed on his movements. If they were to leave the premises, would they face disciplinary action?
Worker’s responsibility
The degree or responsibility would need to be considered. A case involving a worker who was required to sleep at the premises to deal with emergencies such as a break-in or a fire might be treated differently to one where the worker might have more regular or routine duties to perform.
Primary or secondary responder in an emergency
A case involving a person who is woken in an emergency and has to respond to the issue himself may be treated differently to someone is only woken when needed by someone who has already assessed the situation.
The guidance was given by the EAT after it considered three similar cases that were heard together.
In one of the cases, the charity Mencap lost its appeal against a ruling that it was wrong to have paid a care worker only £29.05 to sleep at a vulnerable person’s home in case they needed support during the night. The EAT upheld the Employment Tribunal’s decision that the NMW should apply.
To find out more about JPP’s employment law services please visit employment law
