The recent Court of Appeal decision in the case of Royal MENCAP Society v Tomlinson Blake and Shannon v Ramprasad has considered the issue of whether ‘sleep in’ workers are entitled to the National Minimum Wage for the time that they are attending work but are asleep.
‘Sleep in’ workers and the National Minimum Wage
There is a body of case law which suggests that healthcare workers who are required to be available for emergencies but can do what they like, including sleeping, are entitled to be paid the National Minimum Wage during such a shift.
The Court of Appeal in its judgment overturned the significant body of case law and held that ‘sleep in’ residential care workers are entitled to be paid the National Minimum Wage when they are awake and actually working, but not when they are asleep.
This is an extremely helpful decision for the care home sector which is currently under financial strain in view of funding cuts. The judgment provides some clarity, namely that care workers who sleep but are on call for emergencies and are available for work will not be entitled to be paid the National Minimum Wage until they are actually called upon.
Does this case apply to all workers who are available for work but can also sleep?
No. The Court of Appeal in this case distinguished a Court of Appeal decision in the case of the British Nursing Association (BNA) v Inland Revenue. In this case the BNA provided a 24 hour emergency nurse booking service. The night shifts were worked in the workers’ homes. The workers were required to be available to answer calls but, subject to that, could sleep.
The Court of Appeal in the MENCAP case drew a distinction between actual work and time available for work, and stated that if a worker is expected to sleep then National Minimum Wage will not be applicable.
What should organisations do?
Whilst this is helpful guidance and clarity, organisations should be mindful that each case should still be determined on its own facts. A due diligence exercise needs to be undertaken when assessing whether an individual is entitled to the National Minimum Wage when they undertake shifts that require them to sleep in. In particular, whether they are expected to sleep and the facilities are provided to allow them to sleep.
However, this is a very helpful and significant decision for this sector which is currently facing financial difficulties.