A question of vital importance to employers who engage workers for night work is whether ‘sleep in time’ counts as work time, for which the worker is entitled to receive the national minimum wage, not least because, if employers get it wrong, they could face criminal sanctions.

Three cases on the point were recently heard together in the Employment Appeal Tribunal.   Notwithstanding the importance for both employers and employees, the Judge was unable to give a straight “yes” or “no” answer, rather the outcome is “it all depends”.

The Judge did however set out four factors to be considered in addressing the question. In a nutshell, each case falls to be decided upon its own particular facts whilst applying the four factors.