Sleep-in shifts and National Minimum Wage.

Last week the Supreme Court, in the case of Royal Mencap Society v Tomlinson-Blake and another, decided that time spent sleeping during sleep-in shifts in the circumstances of the two cases was not ‘time work’ for the purposes of National Minimum Wage Regulations.

Previous lower court decisions had been that if a person had to be available for work, their hours could qualify for national minimum wage even if some of those hours were spent asleep, for example carers on sleep-in shifts in care homes. Now however, a worker is only deemed to be working, and therefore eligible for national minimum wage, if they are awake and called upon to carry out their working duties. The Supreme Court stated that “the fact that he [the employee] was required to be present during the specified hours was insufficient to lead to the conclusion that he was working”.

The decision ends a four year long legal battle, between the employers and two care workers. Employers following this case were concerned that the ruling would have added millions to staffing costs, including very significant back-pay claims from sleep-in staff. This decision protects these care providers from having to make such payouts, which may have affected their ability to provide care for vulnerable people.

However, it also puts employees who carry out sleep-in work, who are already some of the poorest paid workers in our society, at the risk of substantial reduction of their earnings. Many care providers increased sleep-in pay following the original tribunal decision in 2017, and could now revert to the usual pre-2017 flat rate of pay. While Mencap have confirmed that they will be continuing to pay staff a “top-ups” following the Supreme Court decision, this is not a universal assurance.

The decision helpfully overturns the inconsistencies of previous case law, and provides employers and employees some clarity for understanding their rights and obligations regarding sleep-in work. However, in light of this ruling, the Government has been called upon to reform the legislation for sleep-in workers by parties on both sides of the case.

Employers should note that while this ruling clarifies when national minimum wage needs to be paid during a sleep-in shift, it does not affect the position in relation to the Working Time Regulations. Therefore, hours spent asleep on sleep-in shifts, still count towards the employee’s working time.

The effect of this ruling will be particularly felt by those in the care industry, where sleep-in shifts are most common. It may require employers with affected employees to reconsider their employee’s contracts of employment and basic salary packages. If you are an employer or an employee and are concerned about how this ruling may affect you, please contact our employment lawyers for advice tailored to your specific circumstances.

If you’re unsure about your position as employee or employer, we’re here to offer some tailored advice specific to you.

The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP

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