Sleeping care worker should have been woken for rest breaks

A care worker at a residential home in North Wales was entitled to be woken after sleeping for six hours to take a rest break, an Employment Appeal Tribunal (EAT) ruled last week.

Mrs S Hughes claimed for constructive unfair dismissal against the owners of Graylyns residential home, Graham and Lynne Jones, on the grounds of alleged breach of working time regulations being paid less then the minimum wage and being evicted from accommodation that was tied to her job as a care worker.

The EAT ruled that Hughes was entitled to be paid the minimum wage while she was on call and awake, regardless of whether she was actually working. It also said she was entitled to be woken up after six hours’ sleep and given a rest break.

Judge McMullen, who presided over the EAT hearing, said: “There may be practical difficulties, indeed absurdities, in the suggestion that a person who is at home sleeping but on call is entitled after six hours of that to be woken up and given a rest break.”

But, said McMullen, according to European case law, Hughes was entitled to be regarded as working when on call whether or not she was actually called out. Consequently, she was entitled to be paid for “rest periods” under the working time regulations.

“The simple arithmetic in this case is that the claimant actually worked eight hours a week and was required to be on call for 77, giving her a working week of 85 hours,” he said. “She was thus entitled to the benefit of the working time regulations which have been breached both by the number of hours required to be worked, including those on call, and by the failure to provide rest periods and rest breaks.”

The EAT allowed Hughes’ appeal, and referred the case back to the Employment Tribunal.

Comments are closed.