Are employees entitled to be paid the national minimum wage for sleep-in shifts if they spend some or all of it asleep? The Supreme Court has advised the answer is “no”.
The sleep-in shifts case of Tomlinson-Blake v Royal Mencap
In a long-running case, the Supreme Court has now given a definitive and binding judgment in respect of the issue of whether staff carrying out overnight ‘sleep-in’ shifts in the care sector are entitled to be paid the National Minimum Wage (NMW) for the entire duration of those shifts.
Ms Tomlinson-Blake was employed by Mencap as a care support worker with a mix of day shifts and overnight ‘sleep-in’ shifts.
When Ms Tomlinson-Blake worked a sleep-in shift, she was permitted to sleep but was obliged to remain at the home throughout the shift and to keep out a ‘listening ear’ in case her support was needed. The need to intervene was infrequent (she had only been disturbed six times during the 16 months preceding the hearing) and there was an expectation that she would get a good night’s sleep, as she might have to work the following day.
Ms Tomlinson-Blake’s claim failed and the Supreme Court ruled that she was not entitled to be paid the NMW for their whole ‘sleep-in’ shift if she spent some or all of it asleep.
The issue with sleep-in shifts
There are two sets of laws which together define what time is to be treated as working and create rights for workers to be paid an hourly rate for work performed: the National Minimum Wage Regulations and the Working Time Regulations. This case was concerned with the former and the principles established by the case do not necessarily apply to the latter.
The NMW Regulations state that ‘time work’ includes hours when a worker is available and required to be available at or near a place of work for the purposes of working, unless the worker is at home. Being ‘available for work’ includes hours when a worker is awake for the purposes of working, even if by arrangement they sleep at or near work and their employer provides sleeping facilities.
Previous decisions had found care workers to be actually working throughout ‘sleep-ins’ for example because they were obliged to remain at the premises in compliance with their employer’s statutory obligation.
The Supreme Court judgment
Workers on sleep-in shifts are entitled to have their hours counted for NMW purposes only when they are “awake for the purposes of working”.
Key to this finding was the distinction between carrying out ‘actual work’ and being ‘available for work’. If a worker is merely available for work, the provision set out above will apply and they cannot be said to be carrying out actual work.
Comment
This judgment will have a beneficial impact on night-time and out of hours businesses and is a crucial finding in favour of the already hard-pressed care sector.
Security staff, hotel staff and very many others who expect a good night’s sleep in their workplace at night will not be entitled to remuneration at NMW rates for time other than when actual work is being carried out.
Whilst there is no longer an obligation to pay NMW when staff are sleeping, some businesses will reflect on this being a potential attraction if they do pay the NMW, especially where recruitment is already difficult.