23rd March 2021

Sound the alarm: Are ‘sleep-in’ workers entitled to receive the National Minimum Wage for hours spent sleeping?

Are employers required to pay ‘sleep-in’ workers the National Minimum Wage (NMW) for the entirety of their shift, including the time that they are asleep? From the view of the worker, this would be attractive indeed. However, the very recent cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another [2021] UKSC 8 (these will hereinafter be referred to as ‘the Mencap Appeal’ and ‘the Shannon Appeal’) provide some good news for employers of ‘sleep-in’ workers. On the flip side, the cases provide bad news for those care professionals affected.

The facts

The appeals were heard together and brought by two ‘sleep-in’ care workers, Mrs Tomlinson-Blake (the Mencap Appeal) and Mr Shannon (the Shannon Appeal). Both workers were required to spend the night at, or near, their place of work and were expected to be asleep for the majority of their ‘sleep-in’ shift. They were to be woken if assistance was requested by their clients and were paid a fixed sum for their ‘sleep-in’ shifts.  They were not paid NMW for every hour of their shift.

Both workers raised cases in the Employment Tribunal, and subsequently to the Employment Appeal Tribunal, in order to recover salary arrears for the hours that they were ‘on-call’. Both workers argued that they were entitled to receive the NMW for every hour of their shift (including time spent asleep). Appeals were held in the Court of Appeal and in both cases, the decision being that neither worker was entitled to receive the NMW for every hour of their shift. The reason for this was that they were asleep for some of the shift and, therefore, not actively ‘working’ for the purposes of the National Minimum Wage legislation.

Disappointed with these decisions, both workers appealed to the Supreme Court.

The decision

The Supreme Court unanimously dismissed the workers’ appeals.

In her judgement, Lady Arden highlighted the recommendations of the Low Pay Commission (LPC), which stated that workers should receive the NMW only for hours that they are awake and available for work. Lady Arden finally held that the ‘sleep-in’ provisions contained in Regulation 32 of the National Minimum Wage Regulations 2015 provided that a ‘sleep-in’ worker should receive the NMW only for hours that they are ‘awake for the purposes of ‘working’.

This decision is significant as it clarifies the position in relation to when ‘sleep-in’ workers are entitled to receive the NMW and sets a clear precedent for employers to follow. It is important for employers to remember that only the hours that the worker is awake for the purposes of ‘work’ are to be considered for NMW entitlement, regardless of how many times the worker is awoken during their shift. Employers should therefore strongly consider installing an accurate time recording system so that ‘sleep-in’ workers receive the correct remuneration for the exact hours spent awake for the purposes of work.

In reaction to the case, Royal Mencap Society welcomed the decision but have called upon the UK Government to reform the legislation governing ‘sleep-in’ workers, describing it as “out of date and unfair”. I can only suspect that ‘sleep-in’ workers will agree with the calls for reform and it will be interesting to see how the Government respond to this landmark decision by the Supreme Court.

If you require any advice regarding the National Minimum Wage or ‘sleep-in’ workers, please get in touch with Blackadders’ Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Blythe Petrie, Trainee Solicitor
Employment Law

Blackadders LLP
@EmpLawyerBlythe

www.blackadders.co.uk

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