National Minimum Wage not payable for sleep-in shifts

Where a worker is required to sleep-in at work but may be woken if they are needed to carry out a specific task, they are only entitled to the National Minimum Wage (NMW) for time when they are required to be awake for the purpose of working. They are not entitled to the NMW for the whole shift.   

Facts

In Royal Mencap Society v Tomlinson-Blake, Ms Tomlinson-Blake cared for two vulnerable adults in their own home. In addition to working days shifts, she was required to carry out a sleep-in shift between 10pm and 7am for which she received a payment of £29.05.  During the sleep-in shift, no tasks were allocated to her but she was obliged to remain at the clients’ house throughout the shift and keep an ear out in case her support was needed. She was provided with her own bedroom, together with a shared bathroom. Over the preceding 16 months, she had only had to get up on six occasions.    

She claimed that she was entitled to the NMW for the whole sleep-in shift. The Employment Tribunal and Employment Appeal Tribunal (EAT) upheld her claim, ruling that she was working for the whole of the shift.  

Mencap appealed to the Court of Appeal. 

Decision 

The Court of Appeal upheld the appeal.  The Employment Tribunal and EAT had been wrong to find that she was actually working for the whole of the shift. It should have concluded that she was available for work, rather than working, and that the sleep-in exception in the National Minimum Wage Regulations 2015 applied - she slept by arrangement at her place of work and was provided with suitable facilities for doing so. Therefore, only hours when she was required to be awake for the purposes of working counted for NMW purposes.    

Implications

This is an important and welcome decision for employers in the care sector who engage workers to carry out sleep-in shifts at work.  The Court of Appeal reviewed and, in effect, overturned a significant number of previous authorities on the treatment of sleep-in shifts for NMW purposes.  Workers who carry out sleep-in shifts at work are only entitled to the NMW Wage for those hours where they are awake and working.  

The judgment only deals with the situation where a worker is expected to sleep all or most of the shift but must be available if needed.  It makes it clear that it is not dealing with cases where a worker may be permitted to sleep between tasks.  It gives the example of a night watchman who must patrol the premises from time to time throughout the night but who is permitted to sleep for short periods between patrols and is given a mattress to sleep on in an office.  He would be regarded as working throughout his shift and entitled to the NMW for the whole shift. 

Unison, the trade union which backed the claim, is seeking leave to appeal to the Supreme Court.