In a case of huge significance – especially for the care sector, the Court of Appeal has decided that workers carrying out “sleep-in” shifts are not entitled to the National Minimum Wage (“NMW”) for the whole shift, but only when they are required to be awake and working.
The Court’s decision has resulted in an ‘about change’ in the law. Previously, making a flat rate sleepers allowance was compliant with the NMW and in 2015, the Government changed their NMW guidance to state that in many cases sleeping time should be paid in full. As a result, the care sector faced significantly increased costs – not to mention the costs associated with claims for back pay.
The main claimant in this case, Ms Tomlinson-Blake, a care home worker was required to do some sleep-in shifts on top of her day shifts. During her night shifts where she slept from 10 pm to 7am, she received a flat rate of £22.35 together with one hour’s pay of £6.70 giving a total payment for that nine-hour sleep-in of £29.05.
She was required to remain at the house throughout this shift in case her support was needed. The tribunal found that there were only six occasions over the preceding 16 months when she had to get up to intervene during the sleep-in hours.
The Court of Appeal ruled that the claimant was not entitled to be paid in full for her sleeping time. Rather she was to be characterised as being “available for work” and on call rather than actually working. As a result, only time when the worker was awake and working would count for the purposes of the NMW.
The court also rejected an earlier decision of the Employment Appeal Tribunal which attempted to introduce a multi-factorial test to decide whether sleeping time should be counted for NMW purposes.
“The decision does not undermine the point of principle…that the at home and sleep-in exceptions only apply in cases where the case falls into the “available for work” rather than “actual work” category.”
There will be cases that fall over the dividing line here: the court referred to the example of a night watchman that had some duties to undertake in addition to sleeping. In these situations it may be expected that the entire period would be classified as actual work.
What does it mean for employers?
A huge let off – some estimates in the media estimated the back pay liabilities would have amounted to £400 million, this decision will be welcomed by a care sector which has been facing significant budget cuts for many years.
Employers who made commitments to pay full NMW rates for sleep-in shifts in their contracts must remember that they cannot revert to flat rate sleep-in allowances without amending the employment contract.
Read the law report for Royal Mencap Society v Tomlinson-Blake