NMW guidance updated to reflect Supreme Court’s ruling on sleep-in shifts
28 April 2021
There has been an update to guidance on paying the National Minimum Wage (NMW) produced by the Department of Business, Energy and Industrial Strategy (BEIS) to include examples relating to sleep-in shifts, following on from the recent Supreme Court ruling on the topic.
The Supreme Court’s decision means that the period that a worker spends asleep on a sleep-in shift is not classified as working time for the purposes of NMW regulations, and so NMW only has to be paid for the time that they spend awake and working. It does not have to be applied when a worker is sleeping on shift.
Under the title of ‘special situations’, the guidance confirms that this stance alters in scenarios where workers are expected to perform various activities for all, or most of a shift, and only allowed to sleep where possible between tasks. The example of napping when not busy is provided. In these situations, then it would be reasonable to suggest that at least the NMW needs to be paid for the entirety of the shift, including for any time spent asleep.
Employers must provide adequate sleeping facilities for workers in order for NMW rules not to apply. If the correct sleeping facilities are not made available, then the NMW is applicable to the full duration of the shift.
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