The Employment Appeal Tribunal (EAT) confirmed (Burrow Down Support Services Ltd. v Rossiter) that a night worker who was required to be available to deal with security issues at his employer’s premises, but who could sleep for much of his shift on facilities provided for that purpose, was entitled to be paid the National Minimum Wage (NMW) for each hour of his shift.
Mr Rossiter was employed by Burrow Down Support Services as a ‘night sleeper’ responsible for the security of the work premises, a care home for people with learning difficulties. He worked from 8 pm to 10 am, two nights a week. His job was to monitor health and safety and to attend to any emergencies. He was required to be awake for a quarter of an hour during the handover of duties and to assist with breakfast for one hour. Apart from that, he could sleep unless his duties required him to be awake. He was paid £24 a night. For the purposes of the NMW Regulations 1999 he was therefore a ‘time worker’ as he was not salaried.
In July 2006, Mr Rossiter was dismissed. He brought claims for unfair dismissal and for breach of the NMW Act. The Employment Tribunal upheld his claims.
Burrow Down appealed against the decision that it had failed to pay Mr Rossiter the NMW. In its view, he was only entitled to be paid the NMW for any time spent actually working, not for the hours he spent asleep, which was the effect of the exception set out in Regulation 15(1A). Mr Rossiter claimed that the exception did not apply as he was working. He was required to be present at his place of work and to be available to deal with any security problems that arose.
The EAT dismissed the appeal. It held that the analysis of this question in the earlier cases of Scottbridge Construction Ltd. v Wright and British Nursing Association v Inland Revenue was correct. Regulation 15(1A) of the NMW Regulations 1999 does not provide an exception if a person is working. It only arises where someone is not in fact working, but is on call waiting to work. It does not apply where a worker is required to be at the employer’s premises and is expected to carry out their duties at any time.
Mr Rossiter was at work for the whole of his shift, even when asleep. He had to be available to deal with emergencies. Burrow Down was therefore required to pay him the NMW for each of the hours of his shift.
It may seem to be a contradiction to say that a night watchman is working when he is asleep but as Lord Johnston pointed out, when hearing Scottbridge v Wright, it would not be appropriate for an employer to require someone’s attendance at their premises but to pay them only for a fraction of the time they are physically present. The solution in such circumstances is to provide the worker with alternative duties in addition to their security responsibilities.