Workers who “sleep-in” not entitled to national minimum wage for whole shift

The Supreme Court recently handed down its judgment in the cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersand and another (T/A Clifton House Residential Home) [2021] UKSC 8.

In this landmark decision, the Court found that a worker is only entitled to the National Minimum Wage (NMW) for periods during a “sleep-in” shift when they are awake. And the hours they sleep on site or nearby do not count towards minimum wage calculations.

The Supreme Court’s decision is likely to have far-reaching ramifications for those jobs where employees are required to sleep in at their place of work and their employers.

Background

Ms Tomlinson-Blake was paid a flat rate of £22.35, plus one hour’s pay of £6.70, totalling £29.05 for a sleep-in shift. She slept in her own room and could sleep during the shift but was required to keep a “listening ear” during the night and provide support when needed. She therefore claimed that the entire shift was “time work” and she was entitled to be paid NMW.

The lower courts ruled that Tomlinson-Blake had been working for the entirety of her sleep-in shift and should therefore should have been entitled to the NMW. However, the Court of Appeal found she was only entitled to NMW for the time she was actually carrying out her duties and not when she was sleeping or resting. The Supreme Court subsequently upheld the decision of the Court of Appeal

In its companion case, Shannon v Rampersand, Mr Shannon, a care worker, lived in a studio in an elderly person’s residential home. Occasionally, he responded during the night to assist the night care worker and was paid a salary and allowance of £50 per week for the sleep in element. He claimed he should have been paid the NMW for the time spent working during the night. However, the Supreme Court found a working from home exception in the NMW regulations and applied it in Shannon’s case, dismissing it.

Fallout

Care providers are relieved by the decision not least because they escape the financial toll the extra-costs of paying the NMW for period of “sleep in” would impose but also back-pay liabilities could have forced many into insolvency. However, businesses may face turbulent employee relations, with many disgruntled staff who had been pinning their hopes on the possibility of better pay.

General Secretary of Unison, Christina McAnea, which backed the case, said: “no one is a winner… Everyone loses until the government intervenes to mend a broken system that relies on paying skilled staff a pittance.”

Implications

The judgment puts an end to many years of uncertainty within the care sector by clarifying the law for “on call” workers who sleep at their workplace. But with calls on the government to legislate for higher rates of pay, and potential for the Low Pay Commission (LPC) to make recommendations in support, some care providers may reconsider their approach to the payment of sleep-in shifts to ensure they can attract skilled staff and remain competitive.

More information

Please contact our employment team here if you require advice following the decision of The Supreme Court or on any other employment matter.

This article was written by Alex Pearce, Senior Associate in the Employment Law Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of April 2021.