Is Sleeping On The Job Grounds for Disciplinary?

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Sleeping at work is generally not allowed, due not only to productivity issues, but also because of potential health and safety hazards, depending on the employee’s role and responsibilities.

Employers should be clear on the rules around sleeping on the job, and the consequences facing employees if they are found have been asleep while at work.

The following guide for employers and HR personnel looks at how to deal with sleeping on the job as a misconduct matter, as well as advice on how to take a support approach to dealing with issues that may be causing the employee to fall asleep at work.

 

Is sleeping on the job misconduct?

There are a number of considerations when with an employee sleeping on the job, from the fact that they have not been present and productive during their shift, to the possibility that being asleep may give rise to health and safety issues at work – putting both the individual in question and other members of staff or the wider public at risk of harm.

For example, if an employee is responsible for operating machinery, sleeping on duty could give rise to serious health and safety risks where machinery has been left unmanned. Equally, if the employee is responsible for the welfare of others at work, such as in a security or healthcare role, the fact that they are not performing their duties while asleep is a potentially serious health and safety matter in respect of those under their charge.

If a member of staff has been found to be or is suspected of sleeping on the job, this will therefore need to be addressed immediately as a potential misconduct matter through the organisation’s disciplinary procedure. This could be on a formal or informal basis, depending on the circumstances involved. For example, a first offence where there are no health and safety concerns could be addressed with an informal chat with their manager.

When following the disciplinary procedure, employers should try to approach the issue with an open mind, as it is a form of misconduct that is not always intended or planned. In some cases, the employee may not be deliberately wasting company time, but rather there could be underlying personal issues in the context of the employee’s own health and wellbeing. The employee could be suffering from work-related stress, for example, through long hours or difficult shift patterns, where falling asleep can be a common sign of employee burnout, a matter for which the employer is potentially responsible. They could even have issues at home that are affecting their sleep cycle, such as overnight caring responsibilities or relationship problems.

Equally, the employee could be suffering from a medical condition, or be on prescribed medication, that is causing extreme tiredness and fatigue. If this condition qualifies as a disability under the Equality Act, you will be under a duty to make reasonable adjustments, which could include being flexible around working hours and break times to ease the employee’s fatigue.

This means that when it comes to ‘sleeping on job’ misconduct matters, it is important to take a step back before deciding on an appropriate course of action, ascertaining the reason for an employee falling asleep at work first. Discretion must also be exercised by the employer, where an employee regularly taking cat naps at their desk after late nights out should be dealt with very differently to an employee who is overworked, has medical issues or is suffering stress at home.

 

Can disciplinary action be taken for sleeping on the job?

Where an employee has been sleeping on the job, any incidents or allegations must first be investigated by the employer. It is only by ascertaining the veracity of any claims, and the reasons behind someone sleeping on the job, that a decision can be made as to how to deal with this appropriately. The matter must also be approached with sensitivity, bearing in mind that there may be an underlying cause that is not easy for the employee to talk about openly.

In many cases, while falling asleep at work is technically a misconduct matter, it may be better to deal with this as a performance and capability issue, rather than a disciplinary issue, in this way supporting the employee rather than reprimanding them. However, where it is obvious that any incident of sleeping on the job is deliberate and designed, where the employee has purposefully decided to use work time to catch up on some sleep, especially where a pattern emerges, this will clearly be a misconduct matter for which disciplinary action can be taken.

For one-off incidents, where the potential repercussions for the business of sleeping on the job are minimal, for example, where this has not given rise to any serious health and safety issues, it may be best to deal with this informally, by way of a quiet chat or verbal warning. In more serious cases, formal disciplinary proceedings may be necessary, where the employee can be issued with a written warning or other disciplinary sanctions.

 

Can an employee be dismissed for sleeping on the job?

In cases where sleeping on the job, either deliberate or unintentional, gives rise to serious health and safety issues, or has other potentially serious ramifications for the business, there may be grounds to justify dismissal. An employer can lawfully dismiss an employee, provided there is a potentially fair reason for the dismissal and a fair procedure is followed. Your organisation’s disciplinary policy should also specify if sleeping on the job constitutes gross misconduct.

There are various potentially fair reasons for dismissal, including ‘conduct’, ‘capability’ and ‘some other substantial reason’. If, following a thorough investigation, an employee is found to be guilty of sleeping on the job, this could amount to misconduct for which a decision to dismiss may be justified. Equally, if an employee is unable to cope with their workload or the number of working hours required of them, they may be fairly dismissed on grounds of capability because they are no longer capable of performing their job role. However, dismissal in these circumstances should only ever be used as a measure of last resort.

Dismissal on grounds of ‘some other substantial reason’ could cover a scenario in which the employee unintentionally falls asleep, an innocent and isolated mistake, but the matter gives rise to such serious health and safety issues, such as leaving machinery unmanned, that terminating their employment can be justified. In fact, this is also the kind of scenario that could potentially justify summary dismissal for gross misconduct, where the matter is so serious that it justifies dismissing the employee without pay or pay in lieu of notice.

However, in all cases of ‘sleeping on job’ misconduct matters, a full and fair disciplinary (or capability) procedure must first be undertaken, even if the matter is serious enough to justify summary dismissal for gross misconduct. This is because the employee must be given the opportunity to respond to the allegations made against them. They must also be given the opportunity to appeal any decision if they feel that the outcome is wrong or unfair.

 

What are an employer’s duties around ‘sleeping on job’ incidents?

All employers are under a statutory duty, as far as reasonably practicable, to ensure the health, safety and welfare of anyone affected by the activities undertaken by the business, including other staff, and any service users or visitors. This means that the employer must, where appropriate, take disciplinary and dismissal action against any employee guilty of sleeping on the job where this gives rise to a serious health and safety issue. However, the employer is also under a duty to caretake the health and wellbeing of the employee.

If the underlying reason behind any incidents of sleeping on the job are down to illness or injury, the employer should endeavour to support the employee’s recovery, and ensure that they can cope with their workload and working hours, even if the employer is not directly responsible for the employee’s ill health in the first place. This could be, for example, where an employee is having difficulty sleeping at home due to ongoing symptoms from a physical or mental impairment or is struggling to stay awake due to medication-related fatigue.

In cases of chronic ill health, where the employee is suffering from a condition that amounts to a disability within the meaning of the Equality Act 2010, the employer will be under a separate statutory duty to make reasonable adjustments in the workplace to remove any disadvantage arising out of this disability. This could include, for example, adjusting the employee’s working hours, perhaps from full time to part-time, or by changing their start and finish times. In these types of cases, it can be better to refer the employee to an occupational health specialist for recommendations specifically tailored to the employee’s job role.

Additional duties also arise around the average number of working hours undertaken. By law, employees cannot work more than 48 hours a week on average, usually taken over a 17-week reference period, unless the employee has opted out of this limit. Equally, an employee must not be allowed to work more than an average of 8 hours on a night shift in any 24-hour period. Finally, employees must have minimum rest breaks of 20 minutes during any 6 hour shift, 11 hours between shifts, and 24 hours each week or 48 hours each fortnight without work.

 

What are an employer’s duties around sleeping on the job at night?

Incidents of sleeping on the job can be especially commonplace during night time working, especially where certain shift rotations, such as days into nights, might be disrupting an employee’s sleep cycle, causing them to fall asleep at work. In the context of night work, an employer is therefore under a number of additional statutory obligations, where the possibility of accidents and injuries can significantly increase as a result of fatigue.

Employers must undertake specific risk assessments for night work. Further, where that assessment highlights workplace hazards, or heavy physical or mental strain, employees must not undertake more than 8 hours night work in any 24-hour period. This then becomes a strict nightly limit that cannot be averaged out over any relevant reference period.

The employer must also offer night workers free health assessments on a regular basis, keeping records of these assessments and the hours undertaken. If, having agreed to and undergone an assessment, an employee is found to have health problems related to night work, the employer must offer that individual suitable daytime work where at all possible.

 

What steps can be taken to prevent ‘sleeping on job’ problems?

In response to any incident(s) of sleeping on the job, there are various steps that can be taken by the employer to prevent this from happening again, in this way helping to discharge the various statutory duties that can arise in this context. These steps can include:

Ascertaining the underlying reason for sleeping on the job: even though an employee being asleep on the job can initially seem like a misconduct matter, there may be factors other than deliberate shirking at play here. These could include medical issues, or stress at work or home. It is therefore important for the employer to establish the root cause of the problem so that steps can be taken to help sleeping at work from becoming a recurring issue.

Deciding on an appropriate course of action: careful consideration must be given to the seriousness of the matter, for example, whether this is a one-off incident or regular occurrence, and what impact this has had or could have on the business. Regard must also be had as to whether this is a disciplinary matter or one where supportive measures are needed instead. By dealing with incidents of sleeping on the job appropriately, this can help to establish the best way of ensuring that this does not become an ongoing problem.

Conducting regular follow-ups: in some cases, even where supportive measures have been put in place, such as adjustments to an employee’s working hours, they may still be struggling to cope at work or to stay awake. It is not uncommon for fatigue-related issues to take some time to resolve. Further adjustments may also be needed, where the employer and employee should continue to work together to find the best way forward.

Finding ways to help support an employee’s energy levels at work: this could include providing bright and well-ventilated workspaces, together with access to cold drinking water and healthy snacks. In addition to creating a healthy working environment, by finding ways to create a healthy work-life balance, such as agreeing to flexible working arrangements, the employer can also help to minimise incidents of tiredness at work.

 

Need assistance?

DavidsonMorris’ HR specialists provide expert support to employers dealing with challenging workforce management issues. Through holistic insight, we can advise on how to approach cases of employees sleeping on the job and how to improve employee wellbeing to manage cases of fatigue and burnout. Contact us for advice.

 

Sleeping on the job FAQs

What to do if someone is sleeping on the job?

If someone is sleeping on the job, steps should be taken by the employer to ascertain the reason for this. This is not always a disciplinary matter, where there could be underlying health reasons for which the employee needs support.

What is sleeping on the job called?

Sleeping on the job can be classed as or called a number of different things, from a misconduct matter to a capability and performance matter, for example, where the employee is struggling to stay awake because of a health condition.

Is falling asleep at work gross misconduct?

Falling asleep at work can sometimes constitute a matter so serious that it would justify summary dismissal for gross misconduct, for example, when this gives rise to a health and safety issue, such as where an employee is operating machinery.

Last updated: 12 July 2022

Author

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

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