Which Hours Attract NMW?
The National Minimum Wage Regulations 2015 define ‘time work’ (time which must be paid at the NMW rates) as hours when a worker is ‘working’ or ‘available to work at or near a place of work’. The definition of ‘available for work’ has two exceptions:
- The home exception - time when the worker is at home is not time work.
- The sleep exception - time when the worker is either asleep or permitted to sleep and the employer provides suitable facilities, is not time work.
Typically, sleep-in shift workers are paid a flat fee per shift to be on-site in case of an emergency and are provided with sleeping facilities. When averaged out over the length of the shift, this flat fee falls below National Minimum Wage levels. However, where either of the exceptions is applicable, the employee is neither working nor available to work, and National Minimum Wage would not be required to be paid.
Is the Worker Working or Merely Available For Work?
There have been several cases that have been inconsistent in determining whether a worker was working, even where they were permitted to sleep. In the case of Tomlinson-Blake v Mencap, the Employment Appeals Tribunals (EAT) used a multifactorial evaluation to determine whether a worker was working throughout the shift or merely available to work, including:
- Was there a regulatory requirement to have workers present?
- Was the worker restricted in the activities they could perform?
- Would the worker be disciplined if they left their workplace?
- Was the worker required to be immediately available in the event of an emergency?
It had been argued by the worker that because the employer (a care home) was under a regulatory requirement to have emergency responses in place and that workers were required to be on-site and assist when required, they were working throughout and should be paid National Minimum Wage throughout the shift. The EAT found in favour of the worker in Tomlinson-Blake but against the worker in a similar case of Shannon v Rampersad.
Appeals were made to the Court of Appeal, which found in favour of the employers in both, holding that as the workers were expected to sleep, they could only be considered available to work, rather than actually working, and therefore the sleep exception would apply.
What Is the up to Date Position?
The Supreme Court has recently heard further appeals in both cases and held that, for a sleep-in shift, workers only need to be paid National Minimum Wage for periods that they were awake and actually working. The NMW Regulations did not envisage that workers could be working if they are sleeping on the premises, even if they are available for work.
The judgment will be welcomed by employers across a range of sectors, particularly the care sector, where workers are on-site throughout the night but permitted to sleep. Employers will not be required to change pay arrangements or face a glut of claims for back pay.
Action Points for Employers
In the aftermath of this judgment, employers should:
- Provide suitable facilities for sleeping, as the sleep exception only applies where these are available;
- Review how time spent awake and working is recorded to ensure correct amounts are being paid;
Check contracts of employment and payroll calculations to understand whether workers are
- being paid at the correct National Minimum Wage rates for sleep-in shifts and not over or underpaid in the context of this development.
- Consider whether any contractual terms must be reviewed or varied.
We're Here to Help
For further information and assistance on the National Minimum Wage issues in light of this judgment, you can contact a member of our Employment Team on 0161 941 4000 or email The Employment Team.