Do sleep-in shifts count as working time for National Minimum Wage purposes?
The Supreme Court have held that sleep-in shifts will not count as working time, in the case of Royal Mencap Society v Tomlinson-Blake.
This brings an end to the uncertainty around whether sleep-in shifts could qualify for the national minimum wage which arose following the case of British Nursing v HMRC. That held that a worker could be ‘working’ even if not required to be awake (or simply be available for work) if a need arose.
The Supreme Court, however, said:
- For the purposes of deciding whether a person is ‘working’ under the Minimum Wage provisions, it does not matter that a worker is at their employer’s direction or required to follow instructions;
- The Low Pay Commission had not intended that anyone who was permitted to sleep could be deemed to be ‘working’ or engaged in ‘time work’ when they first reported to government prior to the 1999 version of the regulations;
- If a worker is actually called on to respond to someone’s care needs (or any other duties) when on a shift, that time will count as ‘time work’ and be subject to the National Minimum Wage.
Experts have said that businesses in the care industry will be ‘breathing a sigh of relief’ at the ruling, as this ends the worry that they would have had to pay large amounts in backpay claims if the workers were in fact entitled to the minimum wage.
Although this decision will be the end of arguments around sleep-in shifts, there is still the potential for litigation regarding homeworkers rights to National Minimum Wage, where they are perhaps not sleeping but are still only ‘available’ for work.
Author: Anna Nelson, Employment Law Advisor at Howarths