Guidance on calculating NMW for sleep-in workers updated

National minimum wage (NMW) law dictates the minimum hourly rate that workers should be paid when conducting their role for an organisation. However, confusion can arise in situations where employees are permitted to sleep for some, or all, of their shift and only work when called upon. This is predominantly seen in the care sector and, indeed, was the subject of a long-awaited Supreme Court ruling in March 2021.

In the case of Tomlinson Blake v Royal Mencap Society, the Supreme Court held that there is no entitlement to NMW for time spent asleep during a care worker’s sleep-in shift. In forming their decision, the court held that NMW law contains provisions in relation to sleep-in shifts which, when applied to this case, means that the claim had to fail. However, they were clear that this only applied to shifts where it is “expected” that the worker will spend some time asleep.

As a result of this ruling, the Government has now updated its guidance on calculating the NMW for sleep-in workers. In particular, they outlined five key examples in which the findings of the Supreme Court might apply. One such example pertains to workers who spent time asleep but are woken up only occasionally to perform tasks. In this situation, where some workers are provided with sleeping facilities and are expected to sleep for most of the night (but are also required to keep open a “listening ear”), these workers would not be entitled to the NMW both while they are awake and asleep. This is because in both cases they are not awake for work purposes, including if they were to choose to stay awake during their shift to read a book for pleasure.

There may also be a situation where workers are required to take calls on a nightshift. The Government recognises that these workers may be expected to sleep, perhaps in a suitable bed, for most of the night between calls. These workers, according to the updated guidance, will only be eligible for the NMW for the time they spend awake for the purposes of answering calls and performing their duties.

Another example from the Government’s full guidance relates to changing contract terms where a sleep-in worker is initially woken up only occasionally for work, but over time they are persistently woken up so that in practice little sleep is possible. In this case, it can no longer be said that they are expected to sleep for most or all of their shift, meaning the worker would likely cease to be a sleep-in worker and may be entitled to the NMW for their entire shift.

NMW can be a complex area of law to tackle for a lot of employers, however it is important that they pay staff for their shifts correctly and at the appropriate rates or risk facing serious repercussions for failing to do so. The risks of failing to pay the correct NMW rates range from fines from the Government, of 200% of the unpaid amount of NMW at a cap of £20,000 per employee, and/or being “named and shamed” as a “rogue” employer.

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