Sleeping while on duty is such an important issue that it is normally set out within a company’s employee handbook as a gross misconduct offence which may lead to possible termination of the employee’s contract without notice.

Some employees may sleep during their rest breaks; this may or may not be permitted by the company dependent on their policies and procedures, for example the need for the employee to be available during an emergency.  Arguable if the employee is asleep during their rest break and a service user uses the buzzer, would they hear it?

In Ajayi and another v Aitch Care Homes (London) Ltd – two night support workers who worked at a home for vulnerable residents were found asleep and after following the employer’s disciplinary procedures they were both dismissed for gross misconduct. They claimed that they were dismissed for asserting a statutory right to a rest break.  The Employment Appeal Tribunal decided that a worker’s refusal to comply with a requirement of the employer (the requirement being a contravention of the Working Time Regulations 1998) must be implicitly conveyed to the employer or explicitly communicated, and in this case it hadn’t been.  In essence the workers fell asleep on duty and when they were caught tried to rely on a piece of legislation that protects workers from dismissal for asserting a statutory right.  The company avoided an automatic unfair dismissal claim but was criticised for its failure to provide any rest breaks.

Other publicised cases in the press have shown photographs of care workers asleep when they are on a waking night shift, and in 2012 a care worker was found to be drugging the residents so she could get a good night’s sleep.

Whilst thankfully these are isolated incidents, sleeping on duty must be treated as an extremely serious conduct offence, and the worker investigated and suspended where necessary pending a disciplinary meeting.  If there is any mitigation then this can be taken into account during the process.

Remember, though, gross misconduct is rare because it is behaviour or negligence so bad that it fundamentally breaches contractual terms, damaging the trust and confidence necessary to continue the employment relationship to the extent that a lesser sanction would not adequately address the matter.

You should always take advice from the 24 Hour Advice Service when dealing with an employee who has been, or you suspect has been, sleeping on duty.