No doubt employers will find it frustrating that so many grey areas remain, but they should pay attention to the four potentially relevant factors the EAT highlighted in this case:
1. The reason for engaging the worker – if an employer needs someone to be onsite at all times to comply with a regulatory or contractual obligation, it is more likely the individual will be classed as working throughout their whole shift, even if they are asleep or have nothing to do.
2. Restrictions on the worker’s activities – a worker who is required to remain on the premises throughout their shift and who would be disciplined for slipping away to do something else is more likely to be working for NMW purposes just by being present than someone who is able to come and go as they please.
3. The degree of responsibility – a care worker who must keep a listening ear throughout their shift and act if required is more likely to be working for their whole shift than someone who is on-call from their own home and is only required to respond to an alarm pager for emergency call-outs.
4. The immediacy of the requirement to provide services – this is not just about the speed with which a worker is required to act; it is also connected to the level of responsibility they have. The EAT compared a worker who must decide whether to intervene and then deal with the issues with a worker who is woken by another member of staff who has immediate responsibility for intervening.