In a recent landmark case, Royal Mencap Society v Tomlinson-Blake, the Court of Appeal were invited to determine whether an employee who worked overnight sleep in shifts should be paid national minimum wage (NMW) for time spent asleep.

The employee in question worked in the care sector and regularly participated in overnight ‘sleep-in’ shifts at the employer’s premises. During these shifts the employee was on call to provide urgent assistance to vulnerable individuals at the care home and was able to sleep at the premises until called upon. For these sleep-in shifts the employee was paid a flat rate allowance and would be provided with an additional one hour of pay, in line with NMW, when she was woken up on occasion to care for residents. The employee argued that the employer had failed to correctly issue her with NMW for time spent asleep and in doing so failed to follow regulation 32 of the National Minimum Wage Regulations 2015. This case was then taken to tribunal to determine if the employee was entitled to NMW for the time spent asleep.

The employee’s claim was originally upheld by both the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT). Both courts ruled that ‘time worked’ for NMW purposes included all times when the employee was available for work, which considering she was expected to be available throughout the sleep in shift included time spent asleep. In making their decision the EAT specifically noted that although it applied in this particular case, the decision of whether someone was ‘working’ when asleep is based on a number of unique factors and must therefore be determined on a case by case basis.

The employer appealed this decision to the Court of Appeal who overturned the previous rulings. The Court stressed that both the ET and EAT erred in not looking at the clear distinctions between ‘working’ and being ‘available for work’ as laid out in the First Report of the Low Pay Commission 1998. They asserted that when a worker is expected to sleep for the whole or most of the sleep in shift, then they are only ‘available for work’. This means that the only time which attracts NMW is the time spent awake for the purposes of actually ‘working’. The Court also made a point of analysing previous case law on this basis, much of which had been used to guide common workplace policy, ruling that some of these cases had been wrongly decided.

Interestingly recent developments have seen Unison lodge a request with the Supreme Court to appeal this decision, however it could be several months before an appeal date is even set, meaning affected employers are free to amend their pay practices in line with the Court of Appeals ruling. If this change in pay requires an amendment to existing terms and conditions, employers are reminded that they must still follow the correct and fair procedure at all times.