‘Sleep-in’ time is not working time confirms Supreme Court
On the basis of the Supreme Court decision, there is no obligation to pay sleep-in workers the National Minimum Wage.
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 Supreme Court has confirmed 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 NMW for the time during which they are asleep. This applies to those workers who may be woken if required to undertake some specific activity, but otherwise are expected to sleep for all or most of the night.
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 of £29.05 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 in Mencap had successfully claimed that the NMW should be paid for the totality of her hours spent sleeping. However, the Court of Appeal overturned that decision holding that, while the worker was asleep, she was ‘available for work’ rather than actually working. The NMW was only payable for any hours she was awake and actively performing duties.
The Supreme Court has now endorsed the Court of Appeal decision.
The Supreme Court decision
The claimant sought to rely on a number of existing cases, involving facts similar to her own, which seemed to suggest that she should receive payment of the NMW for the whole of her sleep-in shift.
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. The subsequent case of Burrow Down v Rossiter reached a similar conclusion in the context of a care worker on a sleep-in shift.
However, the Supreme Court held that both these cases, amongst others, should be overruled. It found that in every case, 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.
The claimant in Mencap was held to be available for work rather than actually working during her sleep-in shift (unless, rarely, she was awake for the purposes of assisting residents). 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 other specific tasks allocated to her overnight. As she was simply ‘available to work’, she was not entitled to the NMW for her periods of sleep.
What does this mean for me?
This decision is good news for employers in the care sector, in particular, who operate to very tight margins and had otherwise faced potentially expensive claims for back-pay - the Supreme Court estimated that this could have been as much as £400 million. We expect that employers will be relieved that certainty has been restored regarding what sleep-in workers should properly be paid.
On the basis of this decision, there is no obligation to pay sleep-in workers the NMW, unless they are awake ‘for the purposes of working’. It is therefore important to set clear parameters, and agree what the worker is required to do when they are not asleep. The Supreme Court gave the example of a ‘sleep-in’ worker whose only responsibility during that time was to answer emergency calls. The NMW will only be payable if the worker actually answers an emergency call – and only the period for which they are actually awake for that specific purpose is included.
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, and there is no mention of this in the Supreme Court Judgment).
How can we help?
This Court of Appeal and Supreme Court decisions have to some extent simplified the issue of pay for sleep-in shifts.
When the EAT considered this case, it proposed a complex multi-factorial test to determine whether the NMW was payable for sleep-in time, encompassing a variety of different factors. The Court of Appeal and Supreme Court have stripped this right back to focus on whether the individual is actually working or is simply available to work. In some cases, however, 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). You will also need to set clear expectations and make sure staff understand when and how much they will be paid.
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.