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Sleeping Time and the National Minimum Wage

Whether or not a worker who is on call at their employer's premises but who is allowed to sleep when their services are not required is entitled to be paid the National Minimum Wage (NMW) for the entirety of their shift has been the subject of dispute in many Employment Tribunal cases and is of particular significance to the care sector, in which so-called 'sleep-in' shifts are common. A failure to pay the NMW when required can lead to penalties and even criminal sanctions against employers. There is, therefore, a pressing need for certainty in the law.

Each case is determined on its own merits, but hitherto a distinction has been drawn between those where an employee is working merely by being present at an employer's premises, whether or not provided with sleeping accommodation, and those where an employee is provided with sleeping accommodation and is simply on call.

The test applied has been a multifactorial one requiring an assessment of relevant factors, including an employer's purpose in engaging a particular worker, restrictions on a worker's personal activities during hours spent on call, the degree of responsibility undertaken and the immediacy of the requirement to provide services.

More recent cases have found in favour of the claimants and the Government's guidance on calculating the NMW was amended accordingly.

However, in a guideline ruling in which the Court of Appeal found that two care workers are not entitled to be paid the NMW for time when they are asleep during sleep-in shifts (Royal Mencap Society v Tomlinson-Blake and Shannon v Jaikishan and Others), Lord Justice Underhill said, "It would not be a natural use of language, in a context which distinguishes between (actually) working and being available for work, to describe someone as 'working' when they are positively expected to be asleep throughout all or most of the relevant period."

Noting that conflicting authorities had given rise to a need for clarification of the law on the point, the Court found that, on a straightforward reading of the National Minimum Wage Regulations 1999, workers sleeping in under such arrangements will only be entitled to have their sleep-in hours counted for NMW purposes where they are, and are required to be, awake for the purpose of performing some particular task. This conflicts with many previous decisions that sleep-in workers were entitled to be paid the NMW for the entirety of the time they were available to work, whether they were actually working or not.

The decision has been hailed as a victory for common sense and one that provides a lifeline to an industry that hitherto faced higher wage bills and back-dated pay claims. However, the question is likely to be appealed to the Supreme Court and we will keep you appraised of developments.

The Government's guidance on calculating the NMW has been updated to reflect the Court of Appeal's judgment.

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The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.