National Minimum Wage – When does sleep count as work?

Posted on July 19, 2018

In a case that has particular implications for the care sector, the Court of Appeal has held that care workers on sleep-in shifts are only entitled to the National minimum Wage (NMW) when they are required to be awake and actually working, and not for the whole shift (including portions when they are asleep).

The case concerned two care workers (Mrs Tomlinson-Blake and Mrs Shannon) who were obliged to spend the night at, or near, their workplaces.  They were expected to sleep for most of the shift, but could be woken if they were needed for particular tasks.  They were paid a fixed sum for these sleep-in shifts. The workers argued that they were not being paid enough to comply with minimum wage rules, on the basis that their whole shift was work that should count for minimum wage purposes.  Their employers argued that only the time awake and working should count.

The Court of Appeal found that under a straightforward reading of the National Minimum Wage Regulations 2015, workers sleeping in would only be entitled to have their sleep-in hours counted for NMW purposes where they were, and were required to be, awake for the purposes of performing some specific activity.

Remember this case is a sleep-in decision involving workers working away from home, with the expectation that they would be sleeping unless required.  The case does not provide guiding principles for all other cases involving on-call workers – such cases need to be decided on their own facts.

Royal Mencap Society v. Tomlinson -Blake; Shannon v. Rampersad (t/a Clifton house residential home) [2018] EWCA Civ 1641