01 July 2021
Danny Done, managing director at Portfolio Payroll, outlines the updated guidance in light of the recent decision of the Supreme Court
The government has released new guidance on calculating wages for sleep-in workers as a result of a recent Supreme Court ruling.
National minimum wage (NMW) law dictates the minimum hourly rate that workers should be paid when conducting their role for an organisation. However, confusion can arise in situations where employees are permitted to sleep for some, or all, of their shift and only work when called upon. This is predominantly seen in the care sector and, indeed, was the subject of a long-awaited Supreme Court ruling in March 2021.
In the case of Tomlinson Blake v Royal Mencap Society, the Supreme Court held that there is no entitlement to NMW for time spent asleep during a care worker’s sleep-in shift. In forming its decision, the court held that NMW law contains provisions in relation to sleep-in shifts which, when applied to this case, means that the claim had to fail. However, they were clear that this only applied to shifts where it is ‘expected’ that the worker will spend some time asleep.
As a result of this ruling, the government has now updated its guidance on calculating the NMW for sleep-in workers. In particular, they outlined five key examples in which the findings of the Supreme Court might apply. One such example pertains to workers who spent time asleep but are woken up only occasionally to perform tasks. In this situation, where some workers are provided with sleeping facilities and are expected to sleep for most of the night (but are also required to keep open a ‘listening ear’), these workers would not be entitled to the NMW both while they are awake and asleep. This is because in both cases they are not awake for work purposes, including if they were to choose to stay awake during their shift to read a book for pleasure.
There may also be a situation where workers are required to take calls on a nightshift. The government recognises that these workers may be expected to sleep, perhaps in a suitable bed, for most of the night between calls. These workers, according to the updated guidance, will only be eligible for the NMW for the time they spend awake for the purposes of answering calls and performing their duties.
When compared with sleeping during a shift, workers who are permitted to take a ‘nap’ during their shift are eligible for the NMW for their entire shift. This is because it is argued that these workers are expected to be awake for most of their shift and are therefore most likely performing regular tasks during their shift. This applies to workers performing time-work (work payable by the hour). However, the government notes that in any event, if workers who are permitted to nap do not have suitable sleeping facilities, they would be eligible for the NMW for their entire shift.
The guidance then goes on to describe a scenario whereby a worker is woken up to deal with an emergency during their shift, but they are not actually required to take action. In this case, and according to the government, they would still be ‘awake for the purposes of working’ and would therefore be eligible to be paid the NMW for the time they are awake.
To offer more context on this scenario, the worker in this case would have been prepared to act in an emergency even if it turns out that they are not needed after all and are able to read the newspaper for the hour, e.g. by getting dressed and sitting near their fellow worker. Overall, they would still be classed as being awake for the purposes of working.
Lastly, the guidance tackles changing contract terms where a sleep-in worker is initially woken up only occasionally for work, but over time they are persistently woken up so that in practice little sleep is possible. In this case, it can no longer be said that they are expected to sleep for most or all of their shift, meaning the worker would likely cease to be a sleep-in worker and may be entitled to the NMW for their entire shift.
NMW can be a complex area of law to tackle for a lot of employers; however, it is important that they correctly pay staff for their shifts and at the appropriate rates or risk facing serious repercussions for failing to do so. The risks of failing to pay the correct NMW rates range from fines from the government, of 200% of the unpaid amount of NMW at a cap of £20,000 per employee, and/or being ‘named and shamed’ as a ‘rogue’ employer.
Featured in the July/August 2021 issue of Professional in Payroll, Pensions and Reward. Correct at time of publication.