The Court of Appeal has delivered an important ruling on whether workers who sleep-in at or near their place of work are entitled to the national minimum wage (NMW) for the whole of their shift, or just the hours spent awake and working. This decision overturns the previous Employment Appeal Tribunal (EAT) decision.

Background

The case was brought by care workers and concerns those workers who are expected to sleep for all or most of their night shift at or near their place of work in facilities provided by their employer but, who may be woken if required to undertake some particular activity. They argued that they should be paid the national minimum wage for the whole of their shift – including the time they spent sleeping – not just the time they were actually working.

Previously, the EAT decided that carers working night shifts were entitled to receive the NMW for the entire duration of their shift, even for those hours spent asleep. However, in Royal Mencap Society v Tomlinson-Blake, the Court of Appeal has reversed that decision.

Sleep-in workers are “available for work” and that is not the same as working

The Court of Appeal ruled that care workers who had to sleep at (or close to) their workplace, so that they could provide care when needed, were not working while asleep. Rather, they were “available for work” (or “on-call”). Therefore, there was an exemption in the legislation which applied and they were only entitled to be paid the NMW for those periods when they were awake and actually performing care duties.

What does this mean for the care sector?

No doubt this ruling will be warmly welcomed by care homes, charities and other employers that require night shift workers to sleep on-site. This case hit the headlines because after the EAT decision, it was reported that 200 leading disability charities, including Mencap, faced a bill of around £400 million in NMW back payments for night shift workers. If this ruling is not overturned by the Supreme Court (we still don’t know if it will be), such back payments are no longer payable.

Comment

The Court of Appeal did not close the door totally on all sleep-in claims in the future. It acknowledged that there is still a diving line in sleep-in cases between workers who are merely available for work (and so not entitled to the NMW) and those who are doing actual work (and therefore not within the exemption and who must be paid the NMW). The outcome will be entirely dependant upon the specific facts of each case and there may be jobs outside the care sector where the position is not so clear cut.

UPDATE: APRIL 2019

The Supreme Court has now granted permission for an appeal in this case and this is expected to be heard in December 2019. It is therefore unlikely that we will have any conclusion to this matter until 2020.