The Supreme Court has decided that workers are not legally entitled to the National Minimum Wage (NMW) during a ‘sleepover’ shift. The decision in the case of Royal Mencap Society v Tomlinson-Blake sees the end of several years of litigation which at one stage, saw the social care sector threatened with thousands of backpay claims worth millions of pounds.
‘Sleepover’ Shifts and NMW
Traditionally, care workers who slept-in to be available to assist those they support were paid an allowance for the entire shift, at below NMW rates, plus NMW rates for any time when they were actually awake to perform work.
This practice led to legal challenges by care workers who argued that the whole time on shift (even whilst asleep) was working time and so should be paid at the NMW rate. Under the National Minimum Wage Regulations 2015 (NMWR) a worker may be treated as working if they are available (and are required to be available) at, or near a place of work for the purpose of doing such work, with two exceptions:
- Where the worker's home is at or near the place of work, the time the worker is entitled to spend at home is not treated as working time.
- Where the worker sleeps by arrangement at, or near a place of work and is provided with suitable facilities for sleeping, the time during the hours they are permitted to use those facilities for the purpose of sleeping shall only be treated as working time when the worker is awake for the purpose of working.
A number of previous Employment Tribunal cases had ruled that care workers were entitled NMW for each hour of a sleep-in shift because they were doing ‘time work’ and not just available for work.
In 2018, the Court of Appeal reached a different opinion and ruled that workers need to actually be awake for the purposes of working in order to be entitled to NMW. That decision was then referred to the Supreme Court.
Decision
The Supreme Court upheld the Court of Appeal decision, making the following findings:
- Whether a person is 'working' under the NMWR, is not dependant on whether that worker is at their employer's direction or required to follow instructions;
- When recommending the exception contained in the NMWR, the Low Pay Commission had not intended that anyone who was permitted to sleep could be deemed to be 'working';
- "awake for the purposes of working" must be looked at as a whole and not simply defined as “awake” or “asleep”;
- For the avoidance of doubt, if a worker is actually called on to perform work, that time will count as 'time work' and be subject to the NMW.
It is worth noting that the principles in the Mencap case apply only to the NMWR exception on sleeping arrangements and not to work at home.
