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Employment Law Case Update: Focus Care Agency v Roberts

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Focus Care Agency v Roberts is the leading case in three appeals which revolved around the question of whether employees who ‘sleep-in’ in order to carry out duties if required engage in ‘time work’ for the duration of the sleep in shift - or if they are working for National Minimum Wage payment purposes only when they are awake.

The claimant in the first case was a carer who for the nine hour sleep-in shift was not allocated any specific tasks, but under a continuing obligation throughout the night to maintain a listening ear and use her professional judgments and knowledge on when to intervene. The tribunal decided that therefore the claimant was performing time work during the sleep in shifts.

The claimants in the second case lived on-site at a caravan park but were only paid a call out payment when on call during the night. The tribunal concluded that as they were at home they were only entitled to be paid the national minimum wage at times when they were actually working.

The third case consisted of two types of night workers: walking night workers with responsibility for the service user, required to be awake at all times, and the sleep-in night worker, employed to assist with any emergency - but not actually required to stay awake. That sleep-in worker was provided sleeping facilities and paid £25 for each nightshift.

After bringing a claim for unfair dismissal and unlawful deductions the claimant in case three realised he was being paid differently to his walking night worker colleague. There was nothing in the contract to say they would be paid differently. The respondent argued that the claimant had waived his rights by failing to complain about the rate of pay until his unfair dismissal claim. The tribunal found that he had not waived his rights because he was unaware of the ongoing breach - and decided he was entitled to be paid the NMW for the hours spent on the nightshift.

The losing parties in each case appealed. In the first case, the appeal was dismissed. The appeal was allowed in the second case. The EAT concluded, among other reasons, that the judge at the tribunal had identified no factors as to the contract and nature of the engagement the claimants’ undertook that led to his conclusion. The appeal in the third case was dismissed. The EAT felt the tribunal had dealt adequately with the question of whether the claimant waived his rights in relation to the breach but it would not have upheld the decision relating to the NMW because the tribunal had not shown it had carried out a multifactorial evaluation.

This area of employment law looks to continue to develop and be disputed. If you are an employer who is in doubt as to what rate you should be paying an employee it would be advisable to obtain some legal advice on the situation. 


This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.