In a decision which looks set to be challenged in the Supreme Court, the Court of Appeal has decided that “sleep-in” workers are not entitled to the National Minimum Wage when they are asleep.

Sleep-in workers include those who are contractually obliged to spend the night either at or near their place of work with suitable facilities provided by their employer. The idea is that the workers will sleep for most or all of the night but then be available for any specific activity which needs to be undertaken. This type of arrangement is not uncommon in the care sector for example.

The Court of Appeal decided in the case of Royal Mencap Society v Tomlinson-Blake, Shannon v Rampersad ([2018] EWCA Civ 1641) that rather than working sleep-in workers are merely “available” for work. This means that they fall under the sleep-in exception in Regulation 32(2) of the National Minimum Wage Regulations 2015 and are only entitled to be paid the National Minimum Wage when they are awake to carry out their duties.

The reason the decision is likely to be appealed is because if the Supreme Court overturns the decision there would be significant ramifications for employers, and in particular charities, who rely on sleep-in workers. If those employers were required to pay the National Minimum Wage instead of a flat rate allowance, they would be facing increased future costs together with a liability for back pay which has been estimated to be in the hundreds of millions of pounds. With such high stakes it would be an appeal some employers could not afford to lose and we will continue to monitor the situation closely.

 

For further assistance or advice about the topics raised in this blog please contact our Employment Law Department either:-

  • By calling 01924 387 110
  • Requesting a call back
  • Or visiting our free Employment Clinic in our Horsforth office every Monday 9am-10am & 12pm-2pm

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