Sleep-in workers not entitled to minimum wage when asleep, decides Court of Appeal
The Court of Appeal has held that care workers who sleep-in are not entitled to the national minimum wage (or national living wage) for the time…
In a very important Judgment for the care sector, the Court of Appeal has held 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/most of the night. This important decision in the joined cases of Royal Mencap Society v Claire Tomlinson-Blake and Shannon v J&P Rampersad (t/a Clifton House Residential Home) fundamentally changes what had thought to be the law.
The appeals were all about sleep-in workers. That is where a worker sleeps in a care home or other environment and is expected to sleep most of the time, but is available to provide care support. It applies where workers are given suitable facilities for sleeping (normally a bed) at the place of work.
In the Mencap case the claim was brought by a support worker who worked an evening shift, and 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 that might require her intervention over night (for example, if the service-user was unwell or distressed), but the need to intervene was infrequent (it had only been six occasions over the preceding sixteen months). The support worker had successfully claimed that the national minimum wage should be paid for the totality of her hours spent sleeping, but this Court of Appeal Judgment overturns that decision.
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 the sleeping hours. It has emphasised that there is an important distinction between those who have to undertake actual work and those who only need to be available for work. 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 the time they work. However, 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 does this mean for me?
For those of you who have care workers living on-site this is a very important Judgment. As a result you will not have to pay national minimum wage throughout the night to those who are on-call, but who are expected to sleep on-site and are given a bed.
However, there are two important limitations to this which the Court of Appeal emphasises:
- The law which applies to minimum wage is completely different to the law which applies to working time. That means a care worker may be working even though asleep for the purposes of the Working Time Regulations (and therefore entitled to rest breaks and subject to the limits on working time), when not entitled to the minimum wage; and
- Whether each individual employee is undertaking actual work or is simply available for work (when able to sleep) “is factual in character, and in marginal cases different Tribunals might well assess very similar facts differently”.
This Judgment is likely to be a relief for many of you, as it may remove a potentially significant liability for unpaid wages. For others there will remain some uncertainty as the right answer may vary depending upon the type of work undertaken and the likely intensity of the on-call. If in doubt about your workers, please do get in touch as, whilst the dividing line has been moved by this decision, there will still be some difficult marginal cases.
What the Court emphasised is that this decision removes (for minimum wage purposes) the basic artificiality of describing someone as working during a shift when it is positively expected that they will spend substantially the whole time asleep. That must be a sensible outcome and is good news for employers in the care sector. However this may yet be appealed to the Supreme Court so may not be the end of the story.
If this does raise any issues for your organisation or you would like to discuss minimum wage or working time please speak to your usual contact in the Weightmans Employment Pensions and Immigration team or contact Phil Allen, Partner, at firstname.lastname@example.org.