Emily Edwards
Posted on 30 Mar 2021

Landmark Supreme Court ruling on National Minimum Wage and "Sleep-in Shift Time"

Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad and another (t/a Clifton House Residential Home) [2021] UKSC 8

The Supreme Court has ruled that "sleep-in" shift time is not considered "work" for the purposes of the national minimum wage (NMW). This is particularly significant for care workers whose duties often involve "sleep-in" shifts at, or near, their place of work. For more information on NMW please see our previous article, here.

Background

This case concerned an employee care support worker (First Claimant) and an employee on-call night care assistant (Second Claimant) (together "the Claimants"). They were contractually obliged to spend the night at or near their workplace on the basis that they were expected to sleep for all or most of the period, but might be woken if required to undertake some specific activity. This is known as "sleeping-in" or a "sleep-in" shift. The "sleep-in" shifts lasted nine hours, during which payment was a flat rate of £29.05. The First Claimant was paid additional sums if called on during the night and the Second Claimant received free accommodation in addition to the fixed sum. In this case, it was found that assistance was only required during the night just six times in a sixteen month period.

Proceedings were issued, with the Claimants contending that the "sleep-in" time was salaried hours' work for NMW purposes. The Employment Tribunal and the Employment Appeal Tribunal dismissed their claim, a decision which was upheld by the Court of Appeal. Both Claimants appealed to the Supreme Court.

Supreme Court Ruling

The Claimants' appeal was heard by the Supreme Court on 12 and 13 February 2021. The question to the Supreme Court was whether workers who ‘sleep in’ are entitled to the NMW for time that is not spent actually performing some specific activity.

The unanimous decision confirmed that there is no requirement for an employer to pay the NMW for the whole period where the care worker is "sleeping-in" at the workplace as part of their duties. It was held that, during this time, workers cannot be deemed to be actually working under regulation 30 of the National Minimum Wage Regulations 2015. Instead, they were "available for work" under regulation 32, meaning that they were entitled to the NMW only for hours during which they were awake for the purposes of working. The court rejected a submission that the sleep-in shifts allowed the employer to meet its contractual obligations to the local authority, in turn discharging a statutory obligation.

Take away points

Given this is a ruling of the Supreme Court, a number of earlier authorities on "sleep-in" shifts can no longer be relied upon. Whilst this decision has settled a long-standing legal debate, it has also raised some concerns regarding the potential cost to employers (primarily in the care sector), should workers be able to raise actions for historic non-payment of salary. This may well be the case where, for example, a flat rate is paid to workers for an entire "sleep-in" shift which does not equate to the NMW for the time during which they were actually working. The cost to the care sector has been estimated to be as great as £400 million, potentially threatening the viability of many care providers.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Emily Edwards to discuss any issues you are facing.