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. Often such shifts are paid at a fixed flat rate, with additional pay for any time spent actively working.  There has long been debate about the correct pay for sleep-in shifts. Must workers be paid the NMW for the entire time spent at the workplace even when sleeping, or must they be simply paid for time spent awake and working?  This makes a big difference to the amount the worker is entitled to be paid.  Similar questions arise with 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:

• If a worker is working by simply being present at the workplace, he or she will be carrying out “time work” and so entitled to be paid the NMW for the whole of this time, even if sleeping.

• If a worker is required to be available at or near their place of work for the purposes of working, the NMW rate is only payable for hours when the worker is awake for the purpose of working, even if the worker sleeps at the place of work using facilities provided by the employer.

The distinction between actual work and availability for work in the context of sleep-in cases is the focus of this Supreme Court decision.

The Mencap case

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 also doing some sleep-in shifts.

The claimant did not have any tasks to perform during a sleep-in shift and was merely obliged to remain in the house and be available if needed – for example, if one of the men was ill or needed help. She was positively expected to sleep during this time and had her own bedroom in the house. The need to intervene was real but infrequent – there had been about six occasions in the preceding 16 months when it had arisen. If nothing happened, she would sleep throughout.

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” and so she was entitled to be paid the NMW for the entire period. 

The earlier decisions

The Employment Tribunal (ET) held that the claimant was actually working throughout the shift and so entitled to be paid the NMW for the entire shift. The Employment Appeal Tribunal (EAT) agreed with the ET and said 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. On the facts of this case, the EAT found that the claimant was working and entitled to the NMW while on a sleep-in shift.

The Court of Appeal (CA) overturned the EAT’s decision. The CA held the claimant was only “available for work” during a sleep-in shift and so was only entitled to be paid NMW for the hours the claimant was actually awake and working.  They paid particular attention to the Low Pay Commission’s (LPC) first report (1998). This recommended that sleep-in workers receive an allowance and not the NMW, unless they were awake for the purposes of working.

SC decision

Unison, the union who had backed the case, sought leave to appeal to the SC and a two-day hearing took place in February 2020.

The SC has unanimously dismissed the appeals and followed the CA in finding that the claimant was not working during the sleep-in shift but was “available for work”, and so only entitled to the NMW for hours during which she was awake and working. In reaching this decision, the SC considered it significant that the legislation had been enacted to implement the recommendations of the LPC 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 SC went on to hold that the multifactorial test set out in the EAT was not required by the legislation and that earlier inconsistent case law should be overruled.

Commentary

Care providers have been awaiting this judgment with bated breath for over two years. The care sector was facing potential claims for arrears of pay worth hundreds of millions of pounds going back up to 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 re-consider their approach to payment of sleep-in shifts in any event to ensure they remain competitive.

These decisions are always fact sensitive. The SC decision makes clear that individuals who are expected to sleep during a shift are only entitled to NMW when they are awake for the purposes of performing duties. However, there will be other cases where individuals are expected to be awake for most of their shift but might be permitted to take a snooze during quiet periods. These individuals are likely to still benefit from the NMW throughout their shift.

Moving forwards, one area where we may see further litigation 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 are required to be available at or near their place of work for the purposes of working, unless they are at home. Although this issue was not directly relevant in this decision, the SC overruled a CA 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 decision of the SC in the Mencap case may now make it harder for home workers to argue that they are working throughout their shifts rather than just being “available for work”.

It is important to note that this decision only relates to what counts as “work” and availability for work for the purposes of the NMW. It does not impact on what constitutes “working time” for the purposes of the Working Time Regulations 1998.

In this context it is noteworthy that, a few days before the SC’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” - read our analysis here.

Royal Mencap Society v Tomlinson-Blake and another case – judgment available here