Court of Appeal decides on Minimum Wage for Sleep-In Shifts

In a significant decision for the care sector, the Court of Appeal has ruled that care workers who work sleep-in shifts are only entitled to the National Minimum Wage for periods during which they are awake and required to be available for work.

In the case of Royal Mencap Society v Tomlinson-Blake, Mrs Tomlinson-Blake was a care support worker for adults with autism. She worked nine hour sleep-in shifts as part of her shift pattern. She had her own bedroom but was required to provide assistance if called up during the night (to that end she kept ‘a listening ear’ during the night). Otherwise, Mrs Tomlinson-Blake had no duties allocated to her during her ‘sleep-in’ shift but could not leave the premises.

Mrs Tomlinson-Blake received a flat rate payment of £22.35 plus one hour’s pay (£6.70) for a nine hour sleep-in shift.The question was whether she should be paid the National Minimum Wage (NMW) for the whole shift or just the time she was awake and required to assist service users.

The National Minimum Wage Act 1998 gives workers the right, in any pay reference period, to be paid a minimum hourly rate of remuneration for work performed. The National Minimum Wage Regulations 2015 define what is to be treated as ‘working’ for the purposes of minimum wage.

Regulation 32 of the National Minimum Wage Regulations 2015 states:

1. Time work includes hours when a worker is available, and required to be available, at or near a place of work for the purposes of working unless the worker is at home (r32(1))
2. In paragraph (1), hours when a worker is ‘available’ only includes hours when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping (r32(2)).

The Court of Appeal held that Regulation 32 applied and that sleep-in cases fell within the ‘available for work’ exception in regulation 32(2) and were not cases where the worker could be said to be actually working throughout the shift.

The Court also found that it was significant that the Low Pay Commission Report (that had led to the National Minimum Wage Act) had recommended sleep-in workers should be afforded special treatment and that the only time that should count for NMW purposes are periods when the workers are ‘awake and required to be available for work’.

On that basis sleep-in workers are only entitled be paid NMW for the hours that they are awake during the night and are working or available for work.