Copyright Moore Barlow LLP (Moore Blatch and Barlow Robbins merged May 2020)

Should you pay national minimum wage for sleep-in/on-call workers?

‘Royal Mencap Society v Tomlinson-Blake’

This case considered whether two care workers (Mrs Tomlinson-Blake and Mr Shannon) were entitled to national minimum wage for the whole time they were ‘on-call’ during the night, or just when their services were called upon.
Finding in favour of the employer, the Court of Appeal decided that only the time spent awake for the purpose of doing some activity should be included in national minimum wage calculations, not time when workers are expected to be asleep. 

Comment

If a worker is on a ‘sleep-in’ shift or ‘on-call’ and they are expected to be asleep but available for work, they are not entitled to national minimum wage.

However, if a worker is expected to be performing duties but permitted to have some sleep, this is classified as working and they are entitled to national minimum wage.

This is a notable ruling as it overturns case-law which classified workers as ‘working’ when they were expected to be asleep but available for emergencies. 

This primarily concerns the care industry and there is still uncertainty about how this applies to night workers in other industries. At this stage, each case would be decided on its own facts and we would urge you to take legal advice if you are unsure about your situation.  

Moreover, it is important to note that ‘Royal Mencap Society v Tomlinson-Blake’ could be subject to an appeal in the Supreme Court. 


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