Frettens Banner Image

Blog

Services
People
News and Events
Other
Blogs

Should employees be paid the National Minimum Wage for sleep-in shifts?

  • Posted
Should employees be paid the National Minimum Wage for sleep-in shifts

Chris Dobbs looks at a recent case where The Supreme Court gave a ruling on whether workers should be paid the national minimum wage for sleep-in shifts. Chris discusses the outcome of this case and what the ruling means for employers.

What is the law on sleep-in shifts?

The Supreme Court has given the final word on whether workers should get paid the national minimum wage for sleep-ins. The case law in this area has been conflicting, with different courts giving different judgments based on similar facts.

Regulation 32(1) of the National Minimum Wage Regulations 2015 says that a person who isn’t working may be treated as working if they are available (and required to be available) at or near a place of work for the purposes of doing work unless they are at home (emphasis added) – this is the home exception.

You can read a similar article 'Is time spent on standby classed as working time?', here.

When is an employer treated as 'available to work'?

Regulation 32(2) says that the worker is only treated as ‘available for work’ when they are ‘awake for the purposes of working’, even if the worker sleeps at or near a place of work – this is the sleep-in exception.

These regulations were originally introduced to implement the recommendations of the Low Pay Commission.

Do employers have to pay national minimum wage for sleep-in shifts?

In Royal Mencap Society v Tomlinson-Blake, the employees were sleeping at or near their workplaces and disturbed infrequently at night. They received an allowance for their shifts but not the NMW for each hour of it.

They brought claims saying they should be paid the NMW for the whole of their sleep-in shifts.

Both claims won at tribunal. On appeal, the Employment Appeal Tribunal upheld the judgment in one claim but allowed the employer’s appeal in the other.

When are sleep-in workers entitled to the national minimum wage?

The Court of Appeal said that the employees were only ‘available for work’, not actually working, while they were asleep.

As such, they were only entitled to the NMW when they were disturbed and therefore awake for the purposes of working. They were not entitled to be paid the NMW when they were asleep.

The Court of Appeal went through some conflicting case law, saying some were wrong and distinguishing others, leaving the waters still muddy.

Are sleep-in workers entitled to the national minimum wage when asleep?

The Supreme Court agreed with the Court of Appeal. The employees were only entitled to the NMW when they were awake and working. They referred to the report of the Low Pay Commission which preceded the NMW and which the government was bound to implement.

They had not intended workers to be paid the NMW while they were sleeping, only when they were awake. In this case, the employee’s requirement to keep a ‘listening ear’ while asleep did not mean she was working.

What does the sleep-in shifts ruling mean for employers?

This case is good news for employers in the care sector who were facing enormous back pay bills if the appeals had succeeded. The Supreme Court went further than the Court of Appeal, saying more of the previous (conflicting) case law was simply wrong.

The clarity on pay for sleep-ins is welcome. However, we are living through times where the value and skills of our care workers are under the spotlight, their vital work ever more appreciated. The Low Pay Commission report is 20 years old and there will be pressure to revisit this issue.

And what of the home exception? With many of us currently home working, the lines between working, being available to work and not working are ever more blurred. Although the law on sleep-ins is now clear, wider questions have not yet been put to bed.

A specialist employment solicitor's view

Chris Dobbs says: “Legally, the Supreme Court has brought clarity to an issue that has been rumbling on for years with decisions often conflicting each other.  As we have said, this will be welcome news to employers, but the Supreme Court’s reasoning for deciding the case against the employees was surprising. 

They focussed on the LPC’s recommendation from over 20 years ago, which is completely out of date given the way a lot of us work has completely changed in the meantime. I would not be surprised to see further cases and pressure on the government to change the law now, particularly as our care workers have been on the frontline and in the spotlight during the coronavirus pandemic.

As usual, we will bring you any updates if and when they occur.”

Employment law advice and guidance: Stay up to date

Throughout the pandemic, our team of bright lawyers have been publishing guidance on the ever-changing regulations. The timely updates are published on our website in plain English and shared on our social media channels.

To be the first to hear about any updates, you can register for our free newsletter (and choose the topics you want to hear about) here.

The content of this article, blog or video is not intended as specific legal advice. For tailored assistance, please contact a member of our team.

Comments

    home