We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
31 March 2021
In a significant case for the care sector, the Supreme Court has finally given its long-awaited judgment on whether care workers working so-called 'sleep-in' shifts are entitled to the national minimum wage (NMW) for periods when they are asleep.(1)
Sleep-in shifts are standard practice in the care industry, with workers required to sleep on the premises in case they are required in an emergency. Such shifts are paid at a fixed flat rate, with additional pay for any time spent actively working. The correct pay for sleep-in shifts has long been debated. Must workers be paid the NMW for the entire time spent at the workplace even when sleeping or must they be paid only for time spent awake and working? This makes a big difference to the amount that workers are entitled to be paid. Similar questions arise with respect to domiciliary carers working sleep-in shifts.
Under the National Minimum Wage Regulations 2015, NMW entitlement depends on whether the individual is actually working throughout the period or is just on call by being required to be available for work:
The distinction between actual work and availability for work in the context of sleep-in cases was the focus of this Supreme Court decision.
In Royal Mencap Society v Tomlinson-Blake, the claimant was a care support worker employed by the Royal Mencap Society. She provided domiciliary care to two men with autism and learning difficulties in their home, primarily during the day but she also did some sleep-in shifts.
The claimant had no tasks to perform during sleep-in shifts and was merely required to remain in the house and be available if needed (eg, if one of the men was ill or needed help). She was expected to sleep during this time and had her own bedroom in the house. The need to intervene was real but infrequent, having arisen on approximately six occasions in the preceding 16 months. If nothing happened, she would sleep throughout the night.
For a nine-hour sleep-in shift, the claimant was paid a flat rate of £22.35 plus one hour's pay of £6.70, totalling £29.05. She claimed that the whole of the shift, including time asleep, was 'time work'; therefore, she was entitled to be paid the NMW for the entire period.
The employment tribunal held that the claimant was actually working throughout the shift and was entitled to the NMW for the entire shift. The Employment Appeal Tribunal agreed with the employment tribunal and stated that the correct approach was a "multifactorial evaluation". The starting point was always to consider whether the individual was actually working during the period, in light of the contract and its context. The Employment Appeal Tribunal found that the claimant was working and entitled to the NMW while on a sleep-in shift.
The Court of Appeal overturned the Employment Appeal Tribunal's decision (for further details please see "Care workers are not entitled to minimum wage for 'sleep-in' shifts"). The Court of Appeal held that the claimant was only available for work and not actually working while on a sleep-in shift. As such, the claimant was entitled to the NMW only for the hours that she was actually awake and working. The Court of Appeal paid particular attention to the Low Pay Commission's (LPC's) first report (1998), which recommended that sleep-in workers receive an allowance and not the NMW, unless they were awake for the purposes of working.
Unison, the union which backed the case, sought leave to appeal to the Supreme Court and a two-day hearing took place in February 2020.
The Supreme Court unanimously dismissed the appeals and followed the Court of Appeal in finding that the claimant was not working during sleep-in shifts but was available for work and was entitled to the NMW only for hours during which she was awake and working. In reaching this decision, the Supreme Court considered it significant that the legislation had been enacted to implement the LPC's recommendations, which included a recommendation that:
For hours when workers are paid to sleep on the premises, we recommend that workers and employers should agree their allowance, as they do now. But workers should be entitled to the National Minimum Wage for all times when they are awake and required to be available for work.
The Supreme Court held that the multifactorial test set out by the Employment Appeal Tribunal was not required by the legislation and that earlier inconsistent case law should be overruled.
Care providers have been awaiting this judgment with bated breath for more than two years. The care sector was facing potential claims for arrears of pay worth hundreds of millions of pounds dating back six years, and some providers would undoubtedly have been forced to close if required to pay for these historic shifts.
With calls on the government to legislate for carers to be entitled to higher rates of pay, and the potential for the LPC to make recommendations in the future to support this, some care providers may reconsider their approach to payment of sleep-in shifts in any event to ensure that they remain competitive.
These decisions are always fact sensitive. The Supreme Court decision makes clear that individuals who are expected to sleep during a shift are entitled to the NMW only when they are awake for the purposes of performing duties. However, there will be other cases in which individuals are expected to be awake for most of their shift but might be permitted to sleep during quiet periods. These individuals are likely to still benefit from the NMW throughout their shift.
Moving forwards, one area in which further litigation may arise is how the NMW provisions on actual work and availability for work apply for those who are working from their own home. The NMW legislation provides that workers are entitled to the NMW if they must be available at or near their workplace for the purposes of working, unless they are at home. Although this issue was not directly relevant in this decision, the Supreme Court overruled a Court of Appeal decision from nearly 20 years ago in British Nursing Association, which held that nurses who manned a 24-hour telephone line at night from their homes who were permitted to sleep between calls were working, rather than available for work for the purposes of the NMW throughout their shift. The Supreme Court's decision in Mencap may now make it harder for home workers to argue that they are working throughout their shifts rather than just being available for work.
This decision relates only to what counts as 'work' and 'availability for work' for the purposes of the NMW. It does not affect what constitutes 'working time' for the purposes of the Working Time Regulations 1998.
Notably, a few days before the Supreme Court's ruling, the European Court of Justice issued two judgments providing guidance on the related issue of when standby or on-call time will count as 'working time'.(2)
For further information on this topic please contact Steven Lorber at Lewis Silkin by telephone (+44 20 7074 8000) or email (firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) Royal Mencap Society v Tomlinson-Blake and another case – judgment available here.
(2) For further information please see "When is time spent on call 'working time'?".
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.