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Carol Shaw
Director, Head of Employment Law
01295 204140
cshaw@se-law.co.uk

Sleep-in workers’ entitlement to national minimum wage

by Carol Shaw | Aug 10, 2018 |
Sleeping in care workers

In the consolidated case of Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad (t/a Clifton House Residential Home) [2018] EWCA Civ 1941, the Court of Appeal delivered a judgment which will significantly impact the care sector.

The Court held that workers who are on “sleeping-in” shifts (that is, where workers are required to sleep at, or near their workplace so that they are available to work if and when required) are only entitled to be paid for the hours which they are actually required to be awake to work, rather than the whole shift.

The law

Under the National Minimum Wage Regulations 2015 (the “Regulations”), a worker who is not actually working may be treated as working if they are available (and are required to be available) to work at, or near a place of work. However, there are two exceptions to this rule:

  • the “home” exception – where the worker is available, or is required to be available, for work whilst at home; and
  • the “sleeping-in” exception – where the worker sleeps by arrangement at or near a place of work and their employer provides suitable facilities for sleeping. During the hours which they are permitted to use those facilities for the purposes of sleeping shall only be treated as working time when the worker is awake for the purposes of working.

It is also important to note the distinction between being “available” to work and actually working. A worker who is available for work at “home” or “sleeping-in” is not entitled to be paid. However, in all other instances, where a worker is available to work, that worker will be paid according to the Regulations. The decision of the Court of Appeal falls within the “sleeping-in” exception.

The case

The two claimants, Mrs Tomlinson-Blake and Mr Shannon, were care workers who were required to spend the night at, or near, their respective workplaces. They were expected to spend the nights sleeping, except when they would be woken to work if it was required. In return, they were paid a fixed sum for their shift but argued that this sum was below the national minimum wage. The basis for their claim was that they should be paid for their entire “sleep-in” shift, which constituted “time work” under the Regulations.

As noted above, the Court held that workers on “sleeping-in” shifts are only entitled to be paid for the hours for which they are awake for the purposes of working.

In coming to this decision, the Court considered both the Regulations and a report by the Low Pay Commission, dated June 1998 (the “Report”), which influenced the drafting of the 1999 version of the Regulations. In considering the Report, the Court noted it was clear that there was no intention to pay workers for a “sleeping-in” shift unless they actually awoke to do work.

This decision does help to clarify previous inconsistent case law, whilst also maintaining the fact that those actually working at night are to be paid for the entirety of their shift, even if they are allowed to briefly nap. Where the situation is reversed and workers are expected to sleep, only being woken for work, the “sleeping-in” exception will apply and worker will only be paid for the time during which they are awake and working.

In addition, this decision will be warmly welcomed by organisations in the care industry who are suffering from funding cuts. The industry would have suffered from significant claims of back-pay from care workers which could have put many care providers at risk of being out of business.

Getting in touch

If you need any further advice, please do get in contact. Call Carol Shaw, Director and Head of Employment Law at Spratt Endicott Solicitors on 01295 204140 , or email ​cshaw@se-law.co.uk.​

*Disclaimer: While everything has been done to ensure the accuracy of the contents of this article, it is a general guide only. It is not comprehensive and does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation.​

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