When a “sleep-in” counts as work

In Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad (t/a Clifton House Residential Home), the Supreme Court held that workers on sleep-in shifts are only entitled to pay in respect of the hours in which they were required to be awake for the purposes of working.

The first claimant sought wage arrears for each hour of her sleep-in shift looking after vulnerable adults at their home. The second, an on-call night-care assistant at a residential care home, claimed he was entitled to be paid the National Minimum Wage for each hour he was required to be on-call, even those hours he was permitted to sleep.

Both claimants appealed to the Supreme Court, which held that, as regards National Minimum Wage (NMW), working time during a sleep-in shift is only the time spent awake and working.

The Supreme Court held that care workers who are expected to sleep at, or near, their workplace but be available “on call” during the night, are not entitled to the national minimum wage for the entire duration of the sleep-in shift. They cannot be described as actually working under regulation 30 of the National Minimum Wage Regulations 2015 instead they are “available for work” under regulation 32.

Carers can only be entitled to the national minimum wage in situations where they are awake for the purposes of working. This means they need to have duties to perform such as waiting for a call to assist or distributing breakfast to the residents of a care home.

For many years there has been a range of inconsistent authorities on the issue of calculating the national minimum wage for sleep-in shifts. The effect of the Supreme Court’s decision is that a number of earlier decisions on sleep-in shifts can no longer be relied upon. Therefore in some respects, the decision has provided welcome clarity and will provide relief to many employers in the care sector who were concerned about claims for underpaid wages.