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Sleep-in Workers – August 2018

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Sleep-in Workers and the National Minimum Wage

In the recent case of Royal Mencap Society v Tomlinson-Blake [2018] the Court of Appeal has held that during sleep-in shifts, staff are not entitled to be paid the National Minimum Wage (“NMW”) for the entire duration of the shift.

The Facts

Ms Tomlinson-Blake was employed by Mencap, a charity which provides support for individuals with learning difficulties, to sleep at a service user’s home in order to be available to assist the service user as and when required. This involved keeping a ‘listening ear’ out and an inability to leave the premises. She was paid a flat rate below the NMW rate for the hours she was on shift and she was able to sleep when not required for work. The Employment Appeal Tribunal (“EAT”) held in favour of Ms Tomlinson-Blake, however, Mencap appealed the decision.

The Law

Under the NMW Regulations 2015  provide that all workers must receive the NNW or National Living Wage as an average for all hours worked in each pay period. Workers may be treated as working if they are ‘available for work, and are required to be available, at or near a place of work for the purposes of working unless the worker is at home’. However, the Regulations also state that ‘hours when “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 Judgement

The Court of Appeal has overruled the EAT’s decision and held in favour of Mencap that the sleep-in workers were characterised as being available for work and were not in fact working for the duration of the shift. Therefore, they are only entitled to be paid the National Minimum Wage for the periods of time which they are required to be awake for the purposes of performing some specific activity and therefore employees are not required to pay the NMW for the entire duration of their shift.

What this Means for Employers

This is a very significant judgement for the care sector and potential good news for employers, as had businesses been obliged to pay their staff the NMW for the whole of a sleep-in shift there would be scope for claims for back pay dating back six years, as well as increased wages going forward. Employers should, however, be wary at this stage as it is likely that this judgement will be appealed and therefore may be subject to further rulings. We advise that employers take a ‘wait and see’ approach at present and we will report on any further developments in due course.

At FTA Law we can offer advice on all aspects of an employer’s duties towards their employees, so please contact us on 0330 088 2275 for further information.

The team at FTA Law provides advice to clients across the commercial and healthcare sectors with many of our instructions coming from referrals from long standing clients and industry contacts.

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