07 Mar 2019
Particularly in the care sector, it is common for employees to perform a ‘sleep-in’ as part of their contractual duties, where they will remain at the workplace overnight and are permitted to sleep but must wake and perform duties when called upon.
The court case
The recent Court of Appeal decision in the case of Royal Mencap Society v Tomlinson-Blake held that workers who perform sleep ins do not need to be paid the national minimum wage (NMW) when they are asleep. The only time that attracts NMW is the time that the employee is awake for the purposes of working, the Court said.
This was somewhat of a shock decision because previous case law made the opposite conclusion, outlining that the NMW is payable for every hour of a sleep in even when the worker is asleep.
It overturns the earlier decisions of both the employment tribunal (ET) and the Employment Appeal Tribunal (EAT), who had reached the same conclusion when considering the facts of this case.
Despite this, the EAT did outline that the question of whether someone was actually working when asleep could be multi-factual and should be considered on a case-by-case basis.
What does the ruling actually mean?
The Court of Appeal decision likely came as a relief to many employers, particularly those in the care sector who faced providing back pay for up to six years of underpayments if the Court had found in favour of the claimant.
It means that, for the time being, the case law position is that NMW is not payable for time spent asleep when on a sleep in shift.
However, the debate is far from over because the case has now been appealed to the Supreme Court for further review.
Why has the decision been appealed?
A key part to this determination is whether the worker is "expected to sleep for all or most of the shift". If the point of the job is to do work and sleep when its quiet, it is likely the worker will be working for all of the shift.
If the point is to sleep and not often be woken, then it is likely they will be classed as "available for work" rather than "working" and not entitled to NMW for any time other than that when they are awake for the purposes of working.
For example, a night watchman who is allowed to sleep for 5 hours of his 10 hour shift but had specific tasks to do at the start and end of the shift would still technically be working for minimum wage purposes for the whole of the shift and the Mencap Court of Appeal decision does not change this.
It currently unknown what position the Supreme Court will take and you should keep up to date with all developments as this case progresses.
Do you have staff working sleep in shifts?
For further clarity on your what the various rulings mean for you and your business, or for assistance with contracts and HR issues, speak to a Croner expert on 01455 858 132.
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