Out-Law Analysis | 05 May 2021 | 2:42 pm | 5 min. read
Different European jurisdictions take different approaches to the treatment of overnight ‘sleep-in’ shifts in social care and similar settings under national working time legislation.
In March, the UK Supreme Court found in favour of the employers in joined appeals brought by care workers who regularly worked such shifts. In its judgment, the court ruled that a person was not necessarily ‘working’ for national minimum wage purposes simply because they were at the direction of an employer or required to follow instructions.
The judgment was a highly significant one for the UK care sector, which had been awaiting clarity from the courts on this issue. As a result, staff carrying out sleep-in shifts can now fairly be paid an “allowance” per shift, rather than having to be paid the national minimum wage for each hour. If the employee is required to be awake and perform duties at any point during the shift, then they will be entitled to remuneration of no less than the national minimum wage for the time which they have to work.
The clarity provided by the Supreme Court’s judgment has been welcomed, in a carefully muted way, by employers. However, staff groups have criticised the result. Both parties in the case – the employer and the trade union representing the care workers – recently wrote a joint letter to the UK prime minister urging him to re-think payments made to care home workers on sleep-in shifts.
Here, we compare the UK’s position with that of other European jurisdictions.
Under French law, remuneration for sleep-in shifts within a social care setting would depend on whether the employee is sleeping in their place of work or while ‘on call’ at home.
Case law has established that night watches performed by an employee in an institutional setting are actual working time, and not on call time
An employee required to remain within the company’s premises to answer a call by the employer is not ‘on call’, but rather in a work period. Case law has established that night watches performed by an employee in an institution for autistic people are actual working time, and not on call time, as the employee is working from an office in which a bed is set up and must be able to respond at any time to requests from residents or other members of staff. Because it is working time, the employee must be paid accordingly – including any applicable overtime or night time supplements.
If the employee does not need to be at their workplace and is not at the permanent and immediate disposal of their employer, but must be contactable and able to carry out work for the employer, that employee will be considered to be on call. For remuneration purposes, a distinction must be made between:
The position in Ireland is similar to the position in France. If the employee is at their place of work or at their employer’s disposal, and can carry out their duties of work, this will be considered working time and therefore the employee is entitled to be paid at least the national minimum wage for their working time.
When an employee is on call, is required to be in the social care setting and available to do work as needed, this is considered working time for the entire on call period
This means that when an employee is on call, is required to be in the social care setting and available to do work as needed, this is considered working time for the entire on call period and the employee should be paid at least the national minimum wage for that entire period.
However, if the employee is on call and is available to do work as needed but is not required to be in the social care setting, only the period that they are in the social care setting carrying out their duties is considered working time. The period that they are on call but not in the social care setting is not considered working time but rather just on call, and does not attract the same pay entitlements.
Ireland’s employment tribunal, the Workplace Relations Commission, has taken into account decisions of the Court of Justice of the EU (CJEU) when determining its position on these points.
German law distinguishes between three positions:
Readiness and stand-by duty are recognised as working time within the meaning of the German Working Time Act (‘Arbeitszeitgesetz’, or ArbZG) but not in terms of remuneration. Since both positions are associated with a less intensive workload for the employee than associated with ‘normal’, full time work, payment is commonly reduced. The exact amount paid depends on the provisions of the employment contract, or a collective or works agreement. However, readiness and stand by duty fall under the statutory minimum wage deriving from the German Minimum Wage Act (‘Mindestlohngesetz’, or MiLoG). The statutory minimum wage increased to €9.50 on 1 January 2021.
Sarah Klachin, LL.M.
Readiness and stand-by duty are recognised as working time within the meaning of the German Working Time Act but not in terms of remuneration
On-call duty did not traditionally count as working time within the meaning of the German Working Time Act. On-call duty was only considered working time in exceptional cases, if the employee had no actual possibility of using the free time for themselves. As a result, the minimum wage regime did not apply. However, this position requires reconsideration in light of two CJEU decisions on standby time, one from Slovenia and one from Germany, dated 9 March 2021.
While the German government is not likely to be required to legislate, German courts will need to interpret and apply the respective statutory provisions in compliance with the CJEU’s reasoning. On-call duty may therefore be looked at differently in future.
The Spanish Supreme Court, in its 2019 ruling 784/2019, has established the basis for differentiating between effective working time and available time.
If the employee is not free to choose their location or activity, that is an important indication that we are dealing with working time
For the Supreme Court, the nature of time is not strictly determined by the direct productivity nature of such time or by the intensity of the activity. If the employee is not free to choose their location – for example, they are required to be physically present on company premises – or activity, that is an important indication that we are dealing with working time. However, in this scenario, the employer can pay a rate less than the employee’s ordinary remuneration for time that does not have a directly productive nature.
In line with the above, article 46 of the collective agreement for care home staff contains the possibility of undertaking on-call shifts called ‘availability shifts’, which should not exceed 25% of a working day, during which the worker is obliged to be available throughout the full shift in order to cover a specific emergency. In this case, it is counted as working time from the moment the employee is required, until 30 minutes after the end of the service. Payment for the remaining time that the worker is available but not providing a service – for example, sleeping – is covered by an availability bonus.
This should not be confused with a night shift, during which the worker provides their services continuously. The night shift is paid as an ordinary working day, with a night shift bonus.
22 Mar 2021