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Sleepover Shifts Do Not Attract National Minimum Wage, Supreme Court Rules

BY Zoe Kerr
Employment Law & HR

The UK Supreme Court hands down its long-awaited judgment this morning in the case of Royal Mencap Society v Tomlinson-Blake.

In a landmark ruling for employment law, the Supreme Court clarified that workers who sleep at their workplace are not entitled to the National Minimum Wage (NMW) unless they are awake and carrying out duties.

Today, the Supreme Court dismissed the appeals of two care workers who were seeking payment for hours spent sleeping whilst on shift. The 32-page judgment details that a sleep-in worker who is “merely present” can be treated as not working for the purposes of calculating pay under the NMW Regulations. The fact that a worker is required to be present during specified times does not change this principle, as it does not necessarily mean that they will be required to work.

The Appellant had previously submitted that as a care-worker, she had to have a “listening ear”, but like in the Court of Appeal, this argument was rejected as having a listening ear does not amount to working for NMW purposes.

The UKSC also considered the facts of the linked case, Shannon (Appellant) v Rampersad and another, where it was put forward that, by being present, the care-worker enabled the employer to perform a regulatory duty, and so was performing work. This idea was also rejected by the Court as this was not considered relevant when calculating working hours for NMW purposes. As well as this, the Court indicated that an imposed obligation on a worker cannot be relevant unless it is reflected in the “practical running of the arrangements” between the worker and the employer. 

This means that employers can continue to pay workers for sleep-in shifts in the same way as they have previously, normally by way of a flat-rate shift payment, as NMW is only payable when the worker is actually awake and working – not for time spent sleeping as part of their shift.

Although a great victory for The Royal Mencap Society, they have expressed concern that the current legislation covering sleep-in payments is “out of date and unfair” and have called upon the Government to reform this area in order that hardworking care workers can be rewarded for their efforts.

Nevertheless, this judgment offers employers in the care sector much comfort and clarity, as it relieves them from the prospect of paying around £400m in back pay if time spent sleeping was found to be working time.

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