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The Court of Appeal has clarified that workers on ‘sleep-in’ shifts are only entitled to National Minimum Wage rates of hourly pay for the time they are awake performing duties.

The ruling overturns decisions from the Employment Tribunal and Employment Appeal Tribunal in the case of Royal Mencap Society v Tomlinson-Blake. It was previously held that sleep-in carers must be paid the National Minimum Wage (‘NMW’) rates for their whole shift, even while they are asleep.

Mrs Tomlinson-Blake was a carer who worked full time helping vulnerable adults in their own homes. She often had to work overnight sleep-in shifts, for which she received a flat rate of £22.35, together with one hour’s pay of £6.70. However, she was not paid her hourly rate for the hours she spent sleeping.

In the previous decisions, Mrs Tomlinson-Blake had successfully argued that she should be paid at least the NMW rates for all the hours she spent sleeping on-site (even if asleep). The factors included the purpose for their presence on-site, the extent to which their freedom was restricted, and their duties.

However, the Court of Appeal has now held that this approach was incorrect. Any time spent sleeping should be excluded from NMW calculations under the regulations. An exemption in the regulations states that the NMW is only payable during hours when the worker is awake for the purposes of working, even if facilities for sleeping are provided by the employer.

While the Court of Appeal’s decision will no doubt disappoint sleep-in workers, it will be met with a huge sigh of relief from care providers, who had been gearing up to face claims for backdated pay worth an estimated £400 million across the sector. There were fears that these claims could have dealt a fatal blow to some organisations and threatened the future sustainability of care for vulnerable adults.

The decision means that there is now a clear distinction between “working” and being “available to work”. It is not enough that workers are sleeping on-site to be ready to work, they must also be awake and working to be entitled to hourly pay at NMW rates.

If you need to discuss these issues further please do not hesitate to contact a member of our Employment team on 0161 941 4000, or by email lawyers@myerson.co.uk

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