National Minimum Wage: sleep-in workers


23 March 2021

The Supreme Court has handed down its decision in this conjoined appeal, heard in February 2020, concerning the question of whether residential care workers are entitled to be paid the National Minimum Wage (NMW) for the entirety of a ‘sleep-in’ shift, or just for the time they are awake and performing duties.

Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad (t/a Clifton Residential Home) [2021] UKSC 8

Facts

These appeals were brought on behalf of care workers, required to sleep at (or near) their workplace and available to be called on during the night to perform duties. The Court of Appeal had previously held that such workers were not entitled to be paid for the entire shift; they were only entitled to receive the NMW for the hours they were awake for the purpose of working.

Tomlinson-Blake worked as a care support worker for Mencap, required to undertake sleep-in shifts to support adults with autism and learning disabilities. She was required to stay on the premises and intervene during the night when necessary. The evidence showed that she intervened six times during a 16-month period.

Shannon worked as ‘on-call night care assistance’ at a residential care home and was provided with accommodation on the premises. He was permitted to sleep but was expected to respond to any request for assistance during the night, which happened only rarely in practice.

Both claimants sought payment of the NMW for the full period of their shift. They appealed to the Supreme Court against the Court of Appeal’s decision that they were ‘available for work’ rather than working for the duration of their sleep-in shift.

Supreme Court decision

The Supreme Court has unanimously dismissed the claimants’ appeal, upholding the Court of Appeal’s decision.

The Court referred to the recommendations of the Low Pay Commission in its first (1998) report for the Government, which assisted in the interpretation of the subsequent National Minimum Wage Regulations 1999. The report recommended that sleep-in workers should receive an allowance rather than be paid the NMW, unless the worker was awake for the purpose of working. This recommendation was incorporated into the NMW Regulations by way of an exception for sleep-in workers.

In order to decide whether this exception applies, it is necessary to look at the nature of the arrangements between the employer and the worker, and what the worker is required to do when they are not asleep. If the expectation is that the worker will only respond to emergency calls during their shift, they are only entitled to be paid for any periods spent actually responding to such calls.

Consequences

This decision has been hugely disappointing for care workers, but comes as a welcome relief to employers of sleep-in staff, many of which have said that a requirement to pay the NMW for the full period of sleep-in shifts would prove economically unsustainable. The decision raises many questions over the pay entitlements of care staff and the funding of the care sector.

It should be noted that the decision is limited to sleep-in workers, who are normally expected to sleep for the duration of their shift and are woken only occasionally. It does not apply to an employee who is permitted to sleep in between carrying out intermittent tasks during their shift.

Something to bear in mind with this decision is that it only relates to the question of whether an individual is working for the purposes of the NMW legislation. It does not change the position under the Working Time Regulations 1998, under which it is already well-established that sleep-in staff are regarded as ‘working’ and therefore entitled to adequate rest breaks in accordance with that legislation.

These articles are from the March 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit  the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts' Employment Law Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at March 2021.

Author

Liz Stevens

Professional Support Lawyer

+44 (0)1603 756474

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