Insights

Sleep-in Shifts will not count for National Minimum Wage

The Supreme Court has handed down its Judgment in the long running dispute between Royal Mencap Society v Tomlinson-Blake on whether workers on sleep-in shifts should be paid the national minimum wage for hours spent asleep concluding that they should not be paid unless they are responding to resident or service users needs or emergencies.   There will be no entitlement to national minimum wage for the time spent sleeping even if that is on-site.

The case began in 2016 when Mrs Tomlinson-Blake argued that all hours spent on sleep-in shifts should be counted as work and therefore be paid under the national minimum wage.  Her claim was successful before the Employment Tribunal when she was awarded six years of back pay.     Mencap appealed the decision to the Employment Appeal Tribunal which upheld the decision that Mrs Tomlinson-Blake was entitled to national minimum wage for all the hours she worked during sleep-in shifts.   Mencap then pursued an appeal to the Court of Appeal where the decision was overturned confirming that a care worker who was permitted to sleep on a shift was only entitled to be paid for the time responding to emergencies or to the needs of the service user or resident and not the whole period of the shift.

A further appeal was made to the Supreme Court which upheld the decision of the Court of Appeal that a care worker could only be paid for the time spent responding to the needs of the resident or service user.   This decision undoubtedly gives certainty to the care sector which otherwise faced a potentially crippling back payment of wages bill in what is a generally underfunded sector.    Care workers can now be paid a flat rate for night-time sleep in shifts.

For further advice on any of the issues raised in this article, contact our employment team on 01689 887887.

 

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