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National Minimum Wage and ‘Sleep-in’ Shifts

Mar 22, 2021

The Supreme Court has ruled that ‘sleep-in shift time’ is not considered ‘work’ for the purposes of the national minimum wage. As a result, care workers who sleep at or near their workplace as part of their job while on shift are not entitled to the national minimum wage for time spent asleep.

This long-awaited Supreme Court ruling has finally settled years of lengthy litigation disputes between care workers and their employers. The first claim in relation to whether the national minimum wage should be paid to sleep-in workers was heard in 2016.

This judgment will be a relief to all employers in the care sector but will not be well received by care workers and trade unions that have been campaigning for a change in pay for a long time.

The Cases

There are two separate cases to note in this decision.

In Royal Mencap Society v Tomlinson-Blake, the Claimant was a care support worker and looked after two men, each in a private residence, with substantial learning disabilities needing 24-hour support. A care plan was in place to ensure that care support workers covered day and night shifts. The night shift was between 10pm and 7am and required a ‘sleep-in.’ During the night shift, the Claimant was not required to carry out specific tasks but did need to sleep at the private residence in order to provide support if needed during the night. The need to intervene during the night was rare and the Claimant was only required to assist during the night six times in eighteen months. The Claimant was not paid the national minimum wage for her shifts and bought a claim in the Employment Tribunal and was successful. The Employment Appeal Tribunal also upheld this decision. The Royal Mencap Society appealed the judgment to the Supreme Court.

A similar case bought by a care worker based in Surrey was heard at the same time as the Mencap case. In this case, the Claimant was employed as an ‘on-call night care assistant’ and had use of free accommodation within the care home he was employed by. The care worker was required to be in his accommodation between 10pm and 7am. He was permitted to sleep during these hours provided he responded to any request for assistance by the night care worker on duty at the home at the time. Much like the first case, he was very rarely required to assist during the night. The Claimant’s claim for national minimum wage on these shifts was dismissed.

In both cases, the Claimants asserted that sleep-in shifts should be considered work even when asleep, because ‘carers must constantly be on guard to protect the vulnerable. Even the sound of a cough in the night could mean that someone is in danger.’

Supreme Court

When considering the appeals, the Supreme Court referred to the legislation in force which states that there are exceptions to what is considered ‘work’ which include where the worker is permitted to sleep during their shift and when the worker is home.

The Supreme Court also referred to the Low Pay Commission (‘the LPC’) which is a statutory body set up by the National Minimum Wage Act 1998. The LPC made a recommendation that sleep-in workers should only receive the national minimum wage when they are awake and working.

This decision will come as a relief to employers in the care sector because it avoids around £400 million worth of back-pay should the Claimants have been successful. It also makes clear however that going forward, employers in the care sector should set up a clear pay reporting system so employees are correctly paid for the time they spend awake and working.

Care workers will no doubt be disappointed that they will not be paid the national minimum wage for their time asleep during sleep-in shifts.

For further information or to discuss the issues raised by this update, please contact our Employment Group on 0118 977 4045 or employment@herrington-carmichael.com.

 

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.

Chantelle DeFilippis

Chantelle DeFilippis

Solicitor, Employment Law

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