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Expert Insights

22 March 2021

Sleep-in workers not entitled to NMW for entire shift

The Supreme Court has unanimously ruled in Royal Mencap v Tomlinson-Blake and another case that two care workers who slept overnight at their employer’s premises but were on call for emergencies fell within the sleep-in exception in the national minimum wage (NMW) legislation. This meant that they were entitled to be paid the NMW only for the time they were awake and providing assistance and not for the entire shift.  

Background

Ms Tomlinson Blake worked for Mencap as a care support worker in a privately-owned property providing care and support to two men with autism and substantial learning disabilities. She had no specific tasks during her sleep-in shift from 10pm to 7am, but was obliged to keep a listening ear out during the night and was expected to provide assistance if necessary.  In practice this had happened six times in 16 months. She received a payment of £29.05 for each shift.  Mr Shannon, worked as an “on-call night care assistant” at Clifton House Residential Home.  He was provided with free accommodation and an allowance.  He was required to be in the flat from 10pm to 7am and to provide assistance if needed which rarely happened in practice.   

Both individuals brought claims that they were entitled to NMW for the entire shift including while they were asleep and the case turned on whether they fell within the sleep-in exception in the NMW legislation. Ms Tomlinson Blake had been successful before the Tribunal and the Employment Appeal Tribunal.  However, the Court of Appeal in both cases had found that the sleep-in exception applied.

Supreme Court’s decision

The Supreme Court agreed with the Court of Appeal’s decision that they were only entitled to be paid NMW for the hours they were providing assistance and not while asleep. When interpreting the legislation, the Court took into account the Low Pay Commission recommendation that sleep-in workers are only entitled to the NMW for hours when they were actually working.  Although they were available for work, they were positively expected to sleep during their shift and the Court held it was important to distinguish between when someone is actually working as opposed to being available for work. It is therefore necessary to look at what the worker’s duties are when they are not asleep but within the hours of the shift.  If the only requirement is to respond to emergency calls, the time is not included in the NMW calculation. Time is only included when the worker is awake for the purpose of working such as responding to a call. Therefore even if a worker’s sleep is constantly interrupted, they are still only entitled to be paid for the time they are working and not for the entire shift. 

Practical implications

Case law in this area has historically been inconsistent and the Supreme Court specifically overturned the Court of Appeal’s decision in British Nursing Association v Inland Revenue which had concluded that employees were working throughout a nightshift even when they were expected to be asleep along with other similar decisions. This decision therefore provides helpful clarification for employers going forwards. The question of whether employers will have to pay sleep-in workers for their entire shifts will come down to whether the main purpose of the arrangement is for them to work, or if they are expected to sleep but be available for work in which case they will only be paid if they are called upon. 

Employers, and particularly those in the social care sector, will be breathing a sigh of relief as they had otherwise been at risk of significantly increased staffing costs and claims for up to six years’ worth of back pay. It means the ongoing support for vulnerable people will be safeguarded and will also contribute to strengthening the sustainability of the sector. The ruling will also affect employers in other sectors too, who engage sleep-in workers at their premises, such as security staff or those providing emergency IT cover.

For further comment from our team on this case, see our recent press coverage here.


For more information, please contact Sara Wilson. 

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