26th July 2018

Legal Issues – ‘Sleep-in’ shifts and the national minimum wage

At a basic level, legislation in relation to the national minimum wage (NMW) is relatively straightforward: workers must be paid at the correct minimum rate for each hour that they work, depending on their age (or year of apprenticeship).

However, questions can arise where it is not clear whether a particular period of time should be classed as working time. One example, that is common in the care sector, is when workers are asked to sleep over at a service user’s home as part of their duties.

In that context, employers would be forgiven for being confused as to which rules apply. Indeed, even the courts have been in disagreement on the subject, as we have seen in cases such as Royal Mencap Society v Tomlinson-Blake, which has just been decided by the Court of Appeal (CA).

In Mencap, Ms Tomlinson-Blake (TB) cared for two autistic men in their home, which required her to sleep over. TB would have to provide care during the night if needed, but otherwise it was expected that she would be asleep during that time. In practice, it was rare for her to actually be needed during the night.

TB was not paid for the time that she was asleep, apart from a flat rate allowance not based on time, and brought claims stating that she ought to be given the NMW for each hour that she spent in the service user’s homes, even when asleep.

The Employment Appeal Tribunal (EAT) used a multifactorial approach to the issue, assessing a variety of factors to determine whether the overnight time should be classed as working time. Having done so, the EAT concluded that TB generally not needing to do any work during the night did not mean that she was not working. As such, the EAT agreed with TB and stated that she should be paid the NMW for the overnight time on a sleep-in shift.

Mencap appealed this decision to the CA, and the case was joined with another appeal in which the lower court decided that a care worker was not entitled to the NMW when he was at work but could be asleep (in contrast with the EAT decision in Mencap). An appeal was therefore helpful given the diametrically opposed decisions in the lower courts.

The CA upheld the appeal in Mencap and dismissed the appeal in the other case. The CA stated that, in the circumstances of those cases, the employees were simply ‘available for work’ and not actually working during any time that they were not required to do anything. On that basis, the NMW was payable only when the employees were awake and actually carrying out work.

This outcome is undoubtedly good news for employers in the care sector, who may have been faced with expensive claims for back pay following the EAT’s earlier decision in Mencap.

However, employers should take note that an ability to sleep on shift will not always mean that the employees are not entitled to the NMW. The CA in Mencap gave the example of a night watchman who is allowed to sleep for much of his shift but is also expected to carry out duties during the night. In that context, the NMW may be payable for the entire period, even during sleep.

Therefore, while we have some clarity on the matter, the matter is still not black and white and much will depend on individual circumstances.

The trade union involved in Mencap, Unison, has also hinted at an appeal to the Supreme Court, so there may be another twist in the tale before long.

If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.

26th July 2018