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National Minimum Wage not Payable for Sleep-over Shifts!

Employment Law & HR
BG Purple

Note: this article was first written by our colleagues at Solve HR, before Solve HR joined Law At Work in March 2020. We have imported this...

Where a worker is required to sleep-over within the workplace, but may only be woken if needed to carry out a specific duty, the worker is only entitled to the National Minimum Wage (NMW) for the time they are required to be awake, for the purpose of working, they are not entitled to the NMW for the whole shift. In the case of Royal Mencap Society v Tomlinson-Blake, Ms Tomlinson-Blake was a carer for two adults in their own home. As well as working day shifts, she was required to carry out a sleep-over shift between 10pm and 7am for which she received a payment of £29.05. During the sleep-over shift, she was not required to carry out any duties but was required to remain at the clients' house and keep an ear out in case she was needed. Ms Tomlinson-Blake had her own bedroom, together with a shared bathroom. Ms Tomlinson-Blake claimed that she was entitled to the NMW for the whole sleep-over 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 who upheld the appeal. The Employment Tribunal and EAT should have concluded that she was available for work, rather than working, and that the sleep-over 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 the hours when she was required to be awake for the purposes of working counted for NMW purposes. This is an important decision for employers in the care sector who engage workers to carry out sleep-over shifts at work. The Court of Appeal reviewed and, in effect, overturned a significant number of previous authorities on the treatment of sleep-over shifts for NMW purposes. Workers who carry out sleep-over shifts at work are only entitled to the NMW Wage for those hours where they are awake and working. It is important to note, that the judgment only deals with the situation where a worker is expected to sleep all or most of the shift but should be available if required. It makes it clear that it is not dealing with cases where a worker may be permitted to sleep between tasks. For example, a night security guard who is responsible for patrolling 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, would be regarded as working throughout his shift and entitled to the NMW for the whole shift. For further advice and support on what counts as working time and NMW contact us at Solve.

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