Employees that ‘sleep-in’: Important new case on pay and working time

Court of Appeal holds that care workers who ‘sleep-in’ are not entitled to the national minimum wage (or national living wage) for the time during…

Where a worker is required to carry out a ‘sleep-in’ shift should they receive the National Minimum Wage (NMW) for the whole of that shift? Alternatively should they only be paid for the hours they are awake and working?

In a very important Judgment for the care sector, the Court of Appeal has held in the joined cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad (t/a Clifton House Residential Home) that care workers who ‘sleep-in’ are not entitled to the national minimum wage (or national living wage) for the time during which they are asleep. This applies to those employees who may be woken if required to undertake some specific activity, but otherwise are expected to sleep for all or most of the night.

What happened?

In Mencap, a claim was brought by a support worker who worked an evening shift followed by a morning shift the following day. In between the two shifts, she was paid a flat-rate for a nine-hour ‘sleep-in’ at the premises. She was expected to intervene where necessary to deal with incidents overnight (for example, if the service-user was unwell or distressed), but the need was infrequent (it had only arisen on six occasions over the preceding sixteen months).

In the Employment Appeal Tribunal (EAT) the support worker had successfully claimed that the NMW should be paid for the totality of her hours spent sleeping. However, this Court of Appeal Judgment overturns that decision.  

Does this decision change the law?

Yes. This case fundamentally changes what we had thought to be the law. The Court of Appeal has overturned much of the existing case law in deciding that the minimum wage does not have to be paid for all sleeping hours.

Existing case-law establishes that those who undertake actual work, such as most security guards or those who are required to answer telephone calls throughout the night (but may have slack periods when they might have a nap) must be paid minimum wage for all of that time. For example, in British Nursing Association v Inland Revenue, bank nurse booking staff, who answered emergency calls throughout the night, but were permitted to sleep during quiet periods, were found to be working and entitled to the NMW for the whole of their shifts. Ms Tomlinson-Blake relied on this case to argue that she too should receive national minimum wage for her whole ‘sleep-in’ period.

She also pointed to a number of EAT Judgments on similar facts to her own case, which were based on the reasoning in British Nursing Association. For example, in Burrow Down v Rossiter (and the similar subsequent cases of Whittlestone v BJP Support and Esparon v Slavikovska) care workers were found to be actually working throughout their sleep-in shifts and were entitled to national minimum wage for the whole period. This body of case-law seemed to suggest that Ms Tomlinson-Blake should receive payment for the whole of her shift.

However, after carefully considering the relevant case-law, the Court of Appeal disagreed with this view. It held that the courts in these cases had relied too heavily on the British Nursing Association case and applied it too broadly. The Court of Appeal emphasised that there is an important distinction to be drawn between those who have to undertake actual work and those who only need to be available for work.

In Burrow Down, Whittlestone and Esparon, the EAT had found that the care workers were actually working during their sleep-in shifts for various reasons (for example because they were unable to leave site, or were legally required to be present to fulfil a statutory obligation).

However, Ms Tomlinson-Blake’s case was slightly different, and she was held by the Court of Appeal to be available for work rather than actually working. This was largely because she was positively expected to get a good night’s sleep (as she might have to work the next morning) and did not have any specific tasks allocated to her overnight. The Court of Appeal looked closely at the wording of the National Minimum Wage Regulations and decided that those who are simply available to work, such as many care workers, are not entitled to minimum wage if they are able to sleep and have sleeping arrangements available.

What happens next?

This case may yet be appealed to the Supreme Court by the union representing support worker Ms Tomlinson-Blake, so this may not be the end of the story. We will keep you posted about the status of any appeal.

This outcome is obviously good news for employers in the care sector who operate to very tight margins and had faced potentially huge back-pay liabilities. However, the decision will undoubtedly have an adverse financial impact on many low-paid workers. For this reason, although the Judgment makes sound legal and practical sense, we can’t rule out the possibility that this outcome might prompt new legislation. For example, the introduction of a new ‘sleeping wage’ has been floated by some commentators (although this appears to be no more than speculation at the moment).

How can we help?

This case has to some extent simplified the issue of when a worker should receive the NMW for the whole of a ‘sleep-in’ shift. However, the new position is far from straightforward.

When the EAT considered this case, it proposed a complex multi-factorial test to determine whether the NMW was payable for sleeping time taking in the particular purpose of engaging the worker; any restrictions imposed on the worker; their degree of responsibility; and the immediacy of the requirement to provide services should the need arise. The Court of Appeal has stripped this right back to focus on whether the individual is actually working or is simply available to work. However, in some cases this will still be a very difficult distinction to draw.

These cases depend very much on their particular facts, and you will still need to weigh up a number of critical factors (such as the nature of the work to be done and the likely intensity of work to be done during any ‘sleep-in’ period). Remember that the consequences of failing to pay the NMW are severe and your organisation may face enforcement action by HMRC, heavy financial penalties and possible criminal sanctions for the most serious cases. If you are in any doubt about the pay due to your workers, or your obligations under the Working Time Regulations to provide appropriate breaks and compensatory rest, we would be happy to advise you.

Louise Singh is a Professional Support Lawyer supporting the Employment, Pensions and Immigration team at Weightmans LLP. If you have any questions, please do not hesitate to contact Louise or speak to your usual Weightmans advisor. 

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