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In Royal Mencap Society v Tomlinson-Blake [2018], the Court of Appeal considered the rate of pay sleep-in workers are entitled to under the National Minimum Wage Regulations 2015 (NMWR), when they are contractually obliged to spend the night at or near their workplace, on the basis that they are expected to sleep for all or most of the shift but may be woken if required to undertake a specific activity.

Fixed sum for sleep-in workers on shift

The claimant, a care worker, was required under her contract to spend the night at work. She was expected to sleep for most of this time but could be woken if she was needed. She was paid a fixed sum for the sleep-in shift and was paid more if she was needed for more than an hour during the night.

At the Employment Appeals Tribunal, the claimant successfully argued that, under the NMWR, she was being underpaid on the basis that the whole sleep-in shift was time worked. The respondent appealed the decision.

Statutory definition of ‘time work’

Regulation 30 of the NMWR defines the meaning of ‘time work’ other than salaried work:

“(a) By reference to the time worked by the worker;

(b) By reference to a measure of output in a period of time where the worker is required to work for the whole of that period; or

(c) For work that would fall within sub-paragraph (b) but for the worker having an entitlement to be paid by reference to the period of time alone when the output does not exceed a particular level.”

Regulation 32 distinguishes two exceptions to the meaning of time work, namely:

“ (1) Time work 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.

(2) In paragraph (1), 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 Court of Appeal held that for the purposes of the NMWR, if the worker is expected to sleep at or near work and is given facilities for doing so, they are characterised as being available for work within the meaning of regulation 32, rather than actually working within the meaning of regulation 30. Only the time spent awake and ‘actually working’ should be included in the calculation of NMWR payments.

Points for employers to consider

When determining whether the regulation 32 exception applies when a worker is contractually obliged to spend a night at or near their workplace, the essential question employers should be asking is whether the worker is expected primarily to sleep during the shift or to sleep only when there is a lull in work. One key factor the tribunal is likely to take into consideration is availabilty of suitable sleeping facilities. The judgment in Mencap represented a substantial sea change in favour of employers over previous case law, which appeared to set out that the minimum wage was payable for all hours required on site, a position that now seems to have been overturned. It will be important to continue monitoring how case law in this area develops. Given the ongoing legal controversy surrounding the issue of low-paid sleep-in employees, it is unlikely that this will be the last development in the area. However, for the time being, employers can perhaps sleep a little easier knowing that they have been judicially backed in their actions so far.

For more information on sleep-in workers and entitlement to the National Minimum Wage or any of the other issues raised in this article, please contact Naomi Cubillo-Barsi in the Leeds Employment team by emailing [email protected] or calling 0113 368 6196.