Do you have to pay the National Minimum Wage for workers who sleep in?

‘Sleep-in’ carers are not entitled to the minimum wage when sleeping

In In a reversal of previous decisions made in so called “sleep-in” cases, the Court of Appeal has held in Royal Mencap Society v Blake [2018] EWCA Civ 1641 that workers who sleep on their employer’s premises whilst on call are not entitled to be paid the national minimum wage for hours spent actually sleeping.

The Law

Under the National Minimum Wage Regulations 1999, workers are entitled to be paid the national minimum wage for all time spent working. The issue of what constitutes working time where “sleep-in” workers are concerned, has been a particularly thorny problem for employers.

The Regulations are complicated, but essentially, where a worker sleeps in their place of work and is provided with suitable facilities for sleeping, they will only be entitled to payment for those hours in which they are “awake for the purpose of working”. This is called the “sleep-in exception”.

However, if the worker is considered to be “working” throughout their “sleep in” shift, they are entitled to be paid the NMW for the entire time.

Unfortunately, previous case-law has demonstrated that it is sometimes difficult to distinguish between the two situations and, as a result, workers have been held to be “working” even when asleep.

Until this new case, Employment Appeal Tribunal guidance was to adopt a “multi-factorial approach” to the question of whether entire “sleep-in” shifts counted as working time for National Minimum Wage purposes. The following factors were considered relevant:

– Is there is a legal or regulatory requirement for someone to be on the premises e.g. for health and safety reasons?

– Will the worker face disciplinary action if they are not present for the entire “sleep-in” shift?

– Is the worker free to come and go from the employer’s premises as they please.

– The degree of responsibility on the worker, looking at the types of activities that they may be called upon to perform during the shift.

This area has caused such difficulty in the care sector that HMRC suspended taking any enforcement measures against businesses in the sector until 2 October 2017 to give employers time to comply with their obligations under the NMW legislation.

The Facts

The employee, Ms Tomlinson-Blake, was a care support worker employed by Mencap. She provided care and support to two vulnerable adults who lived in a privately-owned home and required 24-hour support.

As well as day shifts Ms Tomlinson-Blake, was employed to carry out a sleep-in shift between 10 p.m. and 7 a.m. for which she received a flat rate of £22.35 together with one hour’s pay of £6.70, making a total payment for the 9-hour sleep-in of £29.05.

No specific tasks were allocated to her to perform during the sleep-in shift, but she was required to remain at the house throughout this shift and to keep a listening ear out during the night in case her support was needed. She was also expected to intervene where necessary to deal with incidents that might require her intervention or to respond to requests for help.

This need to intervene was infrequent and if nothing needed to be done during her sleep-in shift, she was entitled to sleep throughout.

It was Ms Tomlinson-Blake’s claim was that she was entitled to have the totality of her hours spent “sleeping-in” counted as time work for National Minimum Wage purposes.

The Employment Tribunal and the Employment Appeal Tribunal upheld her claim, using the multi factor approach to decide, on the facts given above, that she was actually “working” for the whole sleep in shift.

The Court of Appeal held that the Tribunal and the Appeal Tribunal’s decisions were wrong. The Judge held that as Ms Tomlinson-Blake slept by arrangement at her place of work and was provided with facilities for doing so, she should be treated as being “available for work during those hours” and not actually working. As a result, only those hours during which she was required to be awake for the purpose of working counted. The Judge said that Ms Tomlinson-Blake was expected to, and almost always did, get an uninterrupted night’s sleep.

Points to note

Key to the decision that Ms Tomlinson-Blake was not “working” for the entire “sleep in” shift was the fact that she hardly ever got called out at night and both parties expected her to get a good night’s sleep as she would be required to work a day shift the next day

Whilst the decision will be a great disappointment for care workers who have brought claims for back pay, it will be roundly welcomed by employers in the care sector and other employers who require staff to “sleep in” at their premises. It was also be a source of great relief to employers facing large back pay claims from workers.

The judgement provides clarity in an area of law that had become confusing and means that, in the future, employers won’t be required to pay the National Minimum Wage to “sleep in” workers

Action to take

1. When taking on staff to do “sleep in shifts” or similar “on call” work, there is no longer a requirement to pay the minimum wage for hours spent actually sleeping.

2. If you already pay sleep in workers the minimum wage for their entire shift, contact us for advice on whether you can stop such payments in the future.

3. If you are unsure how this decision affects your business, please give us a call – 01983 897003 – 023 8098 2006 – 01722 653001

Case Reference

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 This article was written and researched by Miranda Amos, Solicitor 

(Photo by Chris Thompson on Unsplash)

 Don’t forget getting advice from a Solicitor does not have to be complicated or costly!

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