Sleep-in workers: not entitled to the National Minimum Wage for time spent sleeping

In a case of huge significance for the care sector, the Supreme Court has decided that care workers are only entitled to the National Minimum Wage (NMW) for the hours they are awake and working.

 The time a worker is expected to sleep at, or near their place of work, is not considered ‘working time’ for the purposes of NMW. Care providers will be able to agree a flat rate for the duration of a sleep-in shift, provided that the worker is expected to sleep and is provided with suitable facilities for sleeping. It is important to remember that this decision has no impact on what is considered ‘working time’ for the purposes of the Working Time Regulations which govern holidays and legally required rest and break periods.In light of this decision, the Government has updated its guidance on working hours for which the NMW must be paid and is considering the implications of this judgment for staff who are permitted to sleep between duties. This decision provides an opportunity for care providers to review their NMW compliance.

NMW: a recap

 The National Minimum Wage Act provides that workers must be paid the appropriate NMW rate or the National Living Wage rate for their age for each hour of ‘working time’ over a relevant pay reference period. There are detailed rules for what is considered ‘working time’ for the purposes of calculating NMW. Working time includes when a worker is required to be ‘available for work’ at or near their place of work. However, the law provides an exception for a sleep-in worker; a worker who, by arrangement, sleeps at or near his or her place of work and is provided with suitable facilities for sleeping. The law states that the time when such a worker is ‘available’ includes only when the worker is awake for the purposes of working.

The Supreme Court decision

In the case of Tomlinson-Blake the Supreme Court confirmed that care workers carrying out sleep-ins are not entitled to NMW when they are asleep, even if they are required to sleep on site and may be called upon during the night to carry out tasks. Sleep-in workers who are expected to sleep for the duration of their shift (with few interruptions) are only entitled to NMW for the hours that they are awake and working. In making its decision the Court referred to the original recommendations of the Low Pay Commission that sleep-in workers should receive an agreed allowance and not the NMW for the duration of a shift, unless they were awake for the purposes of working.

Getting NMW wrong

Organisations that fall foul of NMW requirements face severe consequences including the payment of arrears of wages, financial penalties of up to £10,000 per worker and risk being named and shamed by the Department for Business, Energy & Industrial Strategy.

How should care providers manage risk?To discuss the impact of this case on your business please contact Tom Draper or David Potter.