Sleeping on the Job and Employment Payment Claims

Background

A hotel worker has won his appeal that he was entitled to be paid for the hours he spent asleep at work. Mr William Anderson worked as a general assistant with Guest Care Manager responsibilities at the Learmonth Hotel in Edinburgh. He was required to sleep at the hotel several nights each week in case of an emergency, such as a fire or flood, even though he lived nearby. There was a night porter on duty and two employees were required to be present in the hotel at night for health and safety and fire safety reasons.

During the nine months he was required to sleep at the hotel, Mr Anderson was once called out by the night porter to deal with some rowdy guests, but he was not paid for any of the time he spent asleep. On one occasion, however, he was given a verbal warning for leaving the hotel for half an hour during his shift and was warned that any absence during a sleep-over period would be regarded as a disciplinary matter.

The Claim

Mr Anderson brought a claim before the Employment Tribunal in Edinburgh that he was contractually entitled to be paid for all the time he spent at the hotel during sleep-overs. The hotel argued that where the chance of being asked to work was insignificant, ‘on call’ time should not be regarded as working time for the purpose of being paid under the contract of employment.

The Employment Tribunal judged that the time Mr Anderson spent asleep was not working time as he was only there to cover emergencies, which were infrequent, and he was not at his employer’s disposal when sleeping and so was only entitled to be paid for the work he had actually carried out.

The Employment Appeal Tribunal disagreed. Although the claim was for unpaid contractual wages and was not made under the Working Time Regulations, the Employment Appeal Tribunal took account of case law under the Regulations as to what counts as working time when an employee is required to be ‘on call’ at the employer’s premises but is not actually working. Having reviewed the authorities, the Employment Appeal Tribunal judged that employees will be regarded as working even though they are asleep if the place where they are sleeping is their employer’s premises and the reason they are sleeping there is because their employer requires them to be present.

The Decision

In this case, Mr Anderson’s presence was required for health and safety reasons and the requirement was significant enough for him to have been disciplined for leaving the hotel during his shift period. The Employment Appeal Tribunal held that the time he was contractually obliged to be at the hotel was clearly working time and he was entitled to be paid for it.

Revised proposals to resolve issues relating to on call time formed part of a proposed review of the EC Working Time Directive which also sought to scrap the UK’s opt-out from the 48-hour weekly working limit, whereby an individual employee can give his or her prior agreement to waive this right. So far, agreement on the proposals has not been forthcoming and it remains to be seen whether the matter will be revisited during the term of the Finnish presidency.