In the recent case of Royal Mencap Society v Tomlinson-Blake & others, the Supreme Court had to decide how sleep in workers’ working time should be calculated for the National Minimum Wage (NMW).
The claimants in this case were highly skilled carers whose role included sleep-in shifts. During the sleep in shifts they would rarely have to do work, they were able to sleep and were only there as a precaution. One claimant had to intervene 6 times in 16 months.
Under regulation 32 of the National Minimum Wage Regulations (NMWR) 2015, working time will include time where an employee is ‘available’ for work. However, ‘available’ only includes the hours when the worker is awake for the purposes of working. This is even if the worker is sleeping at or near her place of work.
One of the carers was paid £29.05 for a nine-hour sleep-in shift, which equates to £3.22 an hour. The hourly NMW rate for persons aged 18 or over has been £4.98 or above since 2012. The carers brought an employment tribunal case for failure to pay NMW., claiming that all the time spent sleeping should be counted as ‘working time’ for NMW purposes. Her employer’s argument was that when she was sleeping, she wasn’t working, but merely available for work and NMW didn’t apply under regulation 32 of NMWR 2015. They argued that NMW should only apply when she is awake.
The employment tribunal held that the sleep-in exception did not apply as the worker was actually working for the whole period. This is because she had to keep a listening ear while asleep and exercise judgment on whether to intervene. The employer appealed and the Employment Appeal Tribunal agreed with the employment tribunal’s decision.
The employer appealed to the Court of Appeal and they decided that the sleep-in exception applied. They held that any sleep-in worker would have to have a listening ear as that is what they are there for. The worker rarely intervened and would almost always get an interrupted night's sleep. Therefore, a flat rate was fair.
The employees appealed to the Supreme Court, who unanimously agreed with the Court of Appeal. They held sleep-in workers are not entitled to entitled to national minimum wage when they are sleeping.
This case provides useful clarification on the law relating to national minimum wage for sleep in workers. However, the Supreme Court in their decision were clear in that whether a sleep-in worker is working will depend on the individual circumstances. Read the full review of the judgment.
For further information on compliance with working time and National Minimum Wage laws, please contact our employment law team.