Care workers who ‘sleep in’ are not entitled to the national minimum wage for the duration of their shift

The Supreme Court has ruled that time spent sleeping by a sleep-in care worker does not attract the national minimum wage.

Here we provide a brief overview of the conclusion reached by the Supreme Court and offer our initial observations on the outcome.

Background

Mencap is a UK charity that provides support services for vulnerable adults.

Mrs Tomlinson-Blake was employed by Royal Mencap Society (Mencap) as a support worker. In her role:

She would undertake night shifts from 10:00 to 07:00.
Whilst she did not have any specific tasks to carry out, she was required to remain on the premises in case she was needed to provide support or respond to emergencies during the night.
She had her own room on the premises that she could sleep in when she was not needed.
She was paid at a flat rate of £29.05 for the shift but if she was required to respond to requests for help during the night, she would receive additional pay.

National Minimum Wage Regulations 2015 (NMW Regulations)

Under Regulation 32 of the NMW Regulations:

“Time work” (i.e. working time which attracts national minimum wage) includes “hours when a worker is available, and required to be available, at or near a place of work for the purposes of working unless the worker is at home”; and
“Hours when a worker is “available” only includes hours when the worker is “awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping.”

The claim

Mrs Tomlinson-Blake brought a claim in the Employment Tribunal (which was heard in August 2016) alleging that:

When she was required to sleep-in, she was engaged in "time work" for the full duration of the shift for the purposes of Regulation 30 of the National Minimum Wage Regulations 2015.
The national minimum wage should therefore be paid for the full shift.

Mencap argued that Mrs Tomlinson-Blake was only entitled to the national minimum wage when she was awake and actually carrying out work.

The position in relation to the issue of national minimum wage and sleep-in time at an employer’s premises has been the subject of numerous cases with decisions, until now, suggesting that sleep-in time was “time work” for national minimum wage purposes.

Indeed, that was the conclusion of both the Employment Tribunal and the Employment Appeal Tribunal (EAT) in the Mencap case. However, Mencap successfully appealed to the Court of Appeal (CA) and the CA decided in July 2018 that sleep-in workers are only entitled to receive the national minimum wage when they are awake to carry out any relevant duties and not for hours when they are asleep.

Mrs Tomlinson-Blake appealed against this decision to the Supreme Court and the decision was handed down earlier today (19 March 2021).

Today’s Supreme Court decision

The Supreme Court has unanimously dismissed the appeal, agreeing with the position taken by the CA, namely that sleep-in time should not be counted for the purposes of the national minimum wage. By way of a summary, the reasons are as follows:

When deciding whether a person is “working” for the purposes of calculating the national minimum wage, whether a worker is required to follow their employer’s direction or instructions is not a relevant factor;
In the definition of “time work” under Regulation 32(2), the phrase “awake for the purposes of working” must be read as one whole section. Therefore, any time merely awake on an employer’s premises is not necessarily time awake for the purposes of work attracting the national minimum wage;
Simply being present at work does not necessarily mean someone is engaged in “time work” for the purposes of the NMW Regulations. If a worker is called upon to attend to someone’s needs during a sleep-in shift, that time will count as “time work”.