Working Time – Sleep-In Shifts

Advice  |   25 March 2021

Written by
Alexander Willingham, Solicitor

A recent case in the Supreme Court has ruled that that a ‘sleep-in shift’ cannot be considered work for the purposes of the National Minimum Wage Regulations 1999 and 2015. The case of Royal Mencap Society (Respondent) v Tomlinson-Blake (Appellant) where judgement was given on 19 March 2021, puts to bed a long-held belief that sleep-in shifts could qualify for the national minimum wage following British Nursing v HMRC.

British Nursing v HMRC provided that a worker could be ‘working’ despite not being required to be awake. These workers were available for work if the need arose. This scenario is often found in the provision of personal care for vulnerable people in need of 24-hour care.

Under the National Minimum Wage sleep-in provisions, an individual who is expected to sleep during their shift and only be woken infrequently (a sleep-in care worker) is only entitled to the National Minimum Wage when they are awake for the purposes of work. As summarised by the Supreme Court at paragraph 45:

If the employer has given the worker the hours in question as time to sleep and the only requirement on the worker is to respond to emergency calls, the worker’s time in those hours is not included in the NMW* calculation for time work unless the worker actually answers an emergency call. In that event the time he spends answering the call is included. In this aspect of the result, I agree with the illuminating analysis of the Court of Appeal. It follows that, however many times the sleep-in worker is (contrary to expectation) woken to answer emergency calls, the whole of his shift is not included for NMW purposes. Only the period for which he is actually awake for the purposes of working is included.

*NMW National Minimum Wage

Why was there historic confusion?

Historic cases had found in certain circumstances a worker, even though provided with sleeping accommodation and expected to be sleeping for most of the shift, was nonetheless "working" when sleeping simply by being present at the employer's premises.

These cases had significant ramifications for many care providers operating on tight margins. Not only did many employers need to adjust their pay arrangements going forward, they faced significant back-pay claims as well as potential HMRC enforcement notices and financial penalties of up to £20,000 per employee.

What this new decision means?

As the Supreme Court states in Royal Mencap Society (Respondent) v Tomlinson-Blake (Appellant) in paragraph 45:

"Only the period for which [the worker] is actually awake for the purposes of working is included".

Consequently, the time that counts for national minimum wage purposes is the time when the worker is required to be awake and carrying out work. Therefore, the time spent sleeping or awake but not working fails to count.

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