Time spent asleep during ‘sleep-in’ shift does not qualify for NMW

The Supreme Court has announced its judgment in the Royal Mencap Society v Tomlinson-Blake case concerning the payment of sleep-in shifts for support workers.

This case relates to a situation which had been the cause of much confusion for Employment Tribunals. Here, the employee operated in the care sector and regularly undertook overnight ‘sleep in’ shifts at the premises in which elderly, disabled or otherwise vulnerable people lived. The idea was that she was on call to provide urgent assistance to these individuals if required but, aside from this, had no further duties. Due to the unsociable hours that these shifts required, the claimant was allowed to sleep whilst undertaking the role. In actuality, it was very rare that she was needed during the night and was therefore able to sleep through most of her shifts.

The issue here involved how the employee was paid for the overnight shifts. During any periods that she worked in the day she was remunerated at an hourly rate that reflected her National Minimum Wage (NMW) entitlements. However, during the ‘sleep in’ shifts, she was paid a flat-rate allowance plus the amount of one hour of pay to reflect the fact that she may be woken up on occasion. As a result, the employee argued that the employer was not following Regulation 32(1) and (2) of the National Minimum Wage Regulations 2015, concluding she should have been entitled to the full NMW throughout the entirety of the shift, including the times when she was asleep.

The employee’s claim was upheld by the original Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT). Both courts found that ‘time worked’ for NMW purposes included all times when the employee was available for work. As she was expected to be available throughout the night shift, she was entitled to the NMW even when sleeping. The employer appealed to the Court of Appeal.

The Court allowed the appeal, finding that the employee was not actually ‘working’ whilst asleep but was ‘available for work’. In forming their decision, the Court found that both the ET and the EAT had erred by not looking at the clear distinctions between ‘working’ and being ‘available for work.’

The case was taken to the Supreme Court who have unanimously upheld the Court of Appeal’s decision. It said that, whilst ‘available for work’ can count as ‘working’, this is not the case when the employee is expected to sleep for all or most of the shift and is provided with sleeping facilities.  It paid particular attention to a recommendation made by the Low Pay Commission (LPC) that sleep-in workers should receive an allowance - and not the NMW - unless they are awake for the purposes of working. Fundamentally, the law surrounding the payment of the NMW includes specific provisions for those on sleep-in shifts, and that correct application of the law ultimately meant this claim had to fail.

What does all this mean?

This ruling only applies where an employee is expected to sleep during their shift. This means that employers, mainly in the care sector, do not need to pay employees NMW for every hour of their sleep in shift, just the time the employee is awake for the purpose of working.

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