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Hear the phrase "sleep-in" and you would be forgiven for longing for a lazy Sunday morning in bed. But, for residential social workers, a sleep-in is nothing of the sort. Rather than relaxing, sleep-ins - night shifts where staff "sleep" at the residential home - can be filled with constant interruptions and demands from the young people or adults in their care.

Sleep-ins are part of a residential social worker's life, but there have been rumblings of discontent for more than 10 years. These rumblings could be about to turn into an explosion as the European Commission is consulting on issues around the European working time directive which sets out basic rights and protections for workers.


This follows the Jaeger case in Germany and the Simap case in Spain in which the European Court of Justice (ECJ) concluded that sleep-ins are time spent working and cannot be classed as rest periods because a worker is on call at their place of work.

As a result of the Jaeger case, sleep-ins now count towards the 48-hour weekly limit on working time. This could mean that many social services staff who were previously thought to be within the limit may now be working too many hours. That in itself may not have been too great a problem as most people would probably sign the opt-out clause, where they agree to work more than 48 hours a week.

However, the opt-out's days may be numbered. The European Commission believes its use has diminished the directive, which is there to protect the health and safety of workers, and is considering whether to end it. The UK is the only country in Europe that has used the opt-out extensively and is the only one whose working hours have increased.

Joan Seaton, head of employment relations at the Employers' Organisation, says: "This would mean that to maintain the same level of service authorities would have to employ more staff, which would be costly for a cash-strapped service. This is assuming that they could recruit more staff of course, which is already a problem."

Another issue arose from the Jaeger judgement. Under the working time regulations, which implement the directive, all employees must have an 11-hour rest for each 24-hour period they work. There is flexibility for organisations which require continuity of service - and this would include residential care homes, says Seaton. In such cases, the employee does not have to be provided with an 11-hour rest break provided they are compensated for the rest that they could not take. So, if they had nine hours' rest one day, they must be given another two hours' rest in compensation.

Seaton says: "There is no time limit in the directive or the regulations as to when this compensatory rest must be given and the view has been up to now that employers are complying with the regulations if they provided it within a reasonable time."

However, the ECJ held that compensatory rest must be given before the next period of work after that which deprived them of their full rest period. This has huge implications for rota systems, she says. For example, an employee may be required to work an eight-hour shift between 3pm and 11pm, sleep-in between 11pm and 7am and do another eight-hour shift between 7am and 3pm. Under the new interpretation of what constitutes working time, the worker will have worked for 24 hours and will have had no rest period.

The ECJ's judgement questions whether this shift system can continue because the worker's rest period should have started at 4am - during the sleep-in and after 13 hours at work. If each of these shifts was seen as a separate period of working the compensatory rest should be after the sleep-in and before the employee starts the next shift at 7am. This would prohibit the employee working until 6pm and rotas would have to be changed.

Seaton says: "This could be costly and disruptive to the service, as contracts may have to be changed and workers may not want to have to work a more dispersed working pattern. This judgement could have the effect of making such jobs even harder to fill."


However, there is a glimmer of hope. Some observers argue that there is a different slant on the ECJ's judgement. The 24-hour period could be seen as one period of working and therefore the compensatory rest would have to be provided at 3pm. This would probably fit in with existing rotas and should not cause any problems.

Seaton says: "This judgement has meant that the issue of the timing of compensatory rest has become uncertain and potentially a significant drain on resources."

The European Commission finished consulting on the first two issues at the end of March but the issue of the 11-hour rest period was not included. The Employers' Organisation questioned all social services directors on the problems that might arise and their responses were submitted to the commission during the consultation.

A rough estimate suggests that implementing changes could require more than 6,000 extra staff and cost up to £110m. "This relates only to the direct provision of services," says Seaton. "Most residential care is provided by the private sector where the impact may be greater."

If the European Commission does resolve the issue it will be a relief, says Bill McKitterick, co-chair of the Association of Directors of Social Services' human resources committee. He is not opposed to sleep-ins themselves, saying: "It's about not doing excessive hours. If staff are disturbed during the night it's down to the manager to give them some sort of relief, so that they go home before the end of their morning shift."

McKitterick believes there are advantages in residents of children's homes having the same staff putting them to bed and getting them up in the morning. "Too many staff coming and going in a child's life is not good. And there can be benefits in a small home for some staff to go to bed too so that the whole home settles down for the night."

That may be so, but there are others who believe that the system of sleep-ins is inherently dangerous. Frank Higgins is one. Now a personal adviser to a local authority leaving care team, he was a residential social worker. Two years ago he won an employment tribunal case after he was sacked by Stoke-on-Trent Council. He complained that he was too exhausted to do night shifts in a children's home and he was offered a lower paid alternative job, which he refused. He won his case for unfair dismissal and breach of contract.

Higgins says: "Sleep-ins usually mean that two workers go to bed, in effect leaving one person on duty alone at night. I asked for a risk assessment from the council citing that, plus saying that staff were not getting enough sleep - doing in effect three shifts in a row and then driving home."

When Higgins complained that this was a health and safety issue he was told that it was a nationally agreed shift pattern. "Just because everybody does it, does not mean it's right," he says. He says he hasn't done a sleep-in for five years and will never do one again, adding: "Lack of sleep can create a volatile situation."

Much hangs on the results of the European Commission's consultation. But it is paradoxical that an initiative to protect staff from excessive hours may trigger a crisis with a lasting impact on employees' patterns of work and employers' recruitment difficulties.