Workers only entitled to minimum wage when awake and working

The National Minimum Wage (NMW) regulations have been held by the Supreme Court not to apply to 'sleep-in shift time work'. 

In the long-running saga affecting care workers, the court held in Royal Mencap Society v Tomlinson-Blake that sleep-in shifts do not qualify for the NMW following the case of British Nursing v HMRC. In that case it was held that a worker could be 'working' even if it was not a requirement that that they stay awake or be available for work where the need arose to care for a vulnerable person.

The Supreme Court says that workers should not receive the NMW for sleeping.

Regulation 32(1) of the National Minimum Wage Regulations 2015 says that a person who is not working may be treated as working if they are available (and required to be available) at or near a place of work for the purposes of doing work unless they are at home.

Regulation 32(2) adds that the worker is only treated as ‘available for work’ when they are ‘awake for the purposes of working’, even where the worker sleeps at or near a place of work.

These regulations were originally introduced to implement the recommendations of the Low Pay Commission.

In the Royal Mencap Society case the workers were sleeping at or near their workplaces and disturbed infrequently at night. They were paid an allowance for their shifts, but not the NMW, so they argued that they should be paid the NMW for the whole of their sleep-in shifts.

The Court of Appeal held that the workers were only ‘available for work’, not actually working, while they were asleep. As such, they were only entitled to the NMW when they were disturbed and thus awake for the purposes of working. They were not entitled to be paid the NMW when they were asleep.

The Supreme Court agreed with the Court of Appeal. The workers were only entitled to the NMW when they were awake and working.

Employers in the care sector will welcome the outcome as they will have been facing a large bill for back pay had they lost.

Can we help?

Our Employer Solutions team here at Bishop Fleming can assist you with any queries you may have in respect to the above and can help employers review their employee’s current domestic or overseas remote working arrangements and advise on the risks and implications of such arrangements.

Our Employer Solutions Knowledge Hub contains more information on how our team can help you attract and retain talent for your business.

For further help, please check out our Business after COVID-19: Transition Knowledge Hub.