The Supreme Court to decide whether time spent asleep during sleep-in shifts should be paid at National Minimum Wage rate in landmark case
12 February 2020
This week, the Supreme Court will determine whether or not the National Minimum Wage (NMW) will be applicable to time that employees spend asleep during sleep-in shifts. This is a long-anticipated and notable case as it could potentially change the lives of workers, predominantly in the social care sector, and massively impact the businesses that employ them.
Back in 2018, the Court of Appeal ruled that employees who stay overnight at a disabled, elderly or vulnerable person’s house are entitled to NMW for the duration in which they are carrying out their duties only, and not for any time spent asleep during the shift. There were two cases that looked into this, and they were Royal Mencap Society v Claire Tomlinson Blake, and John Shannon v Jaikisham and Prithee Rampersad.
Lord Justice Nicholas Underhill said:
“Sleepers-in… are to be characterised for the purpose of the regulations as available for work… rather than actually working… and so fall within the terms of the sleep-in exception.
The result is that the only time that counts for national minimum wage purposes is time when the worker is required to be awake for the purposes of working.”
Within current Department for Business, Energy and Industrial Strategy (BEIS) guidance on NMW, there is a section on sleep-in shifts, which maintains that:
If the employer provides suitable facilities for sleeping, minimum wage must be paid for time when the worker is required to be awake for the purpose of working, but not for time the worker is permitted to sleep. However, if suitable sleeping facilities are not provided then minimum wage must be paid for the entire shift.
The case for consideration by the Supreme Court is an appeal against the Court of Appeal ruling in favour of Mencap, and the result could be significant if it is ruled that time spent asleep during sleep-ins is subject to NMW rules, with the liability in the care sector expected to total £400 million. Mencap alone has predicted it will incur a £20 million bill and has expressed concerns of insolvency if required to pay those sums.
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