Essential Trustee - National Minimum Wage uncertainty for charities and other employers


15 January 2019

In some sectors, particularly in the care industry, workers are required to be on call at their place of work, and undertake ‘sleep-in shifts’. They are required to sleep for most or all of the period, but may be woken to undertake work.

What does the law say?

The recent joined cases of Mencap v Tomlinson-Blake and Shannon v Rampersad [2018] EWCA Civ 1641 was heard in the Court of Appeal, and decided that sleep-in shift workers are entitled to National Minimum Wage whilst they are awake and working. While such workers are asleep, they are not (funnily enough!) working, and so they are not entitled to be paid the National Minimum Wage during this time.

Each case may be different depending on its facts, including what actually happens in practice and what is contained in any contract of employment, but this case provides a very good indication of how employers should be paying their workers carrying out sleep-in shifts.

Recent government guidance supports this, providing that, as a starting point, if the worker is provided with suitable sleeping facilities, then they must be paid for the time they are required to be awake for the purpose of working. If the worker is not provided suitable sleeping facilities, then they must be paid at least the National Minimum Wage for the entire shift.

What does this mean for charities?

Charities have criticised the legal position as being too uncertain, particularly as the Mencap case may be appealed to the Supreme Court. This would mean that the decision, as it stands, could change, and workers who undertake sleep-in shifts may be entitled to be paid National Minimum Wage for the entire time they are at work. If, or until the Supreme Court considers an appeal, employers must continue to comply with the law as it currently stands.

What can be done about the uncertainty in the law?

The Voluntary Organisations Disability Group (VODG) has indicated that instead of the uncertainty of changing case law and government guidance, the government put legislation in place to provide a clear position on what sleep-in shift workers should be paid.

Other charities have expressed disappointment at the Mencap decision, and assert that sleep-in shift workers should be paid the National Minimum Wage for their entire shift, to ensure certainty and remove confusion. Making sure that local authorities and providers are properly funded for all shifts, including sleep-ins, at the National Minimum Wage would support this move to a more certain position for charities and other employers.

What to do if you are unsure of your compliance with the law

If you are an employer and require advice regarding the arrangements you have in relation to the National Minimum Wage and sleep-in shift workers, please contact Sonya O’Reilly or another member of Birketts' Employment Team

This article is from the January 2019 issue of Essential Trustee, our newsletter for charity trustees and senior management. To download the latest issue, please visit the newsletter section of our website. Law covered as at January 2019.

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