Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad (t/a Clifton House Residential Home) (Court of Appeal)

Individuals who are contractually obliged to perform sleep-in shifts at or near their place of work are only entitled to the national minimum/living wage, as applicable (“NMW”), in respect of hours during which they are awake for the purposes of working. NMW was not payable for time spent asleep during their shifts.

In this case, two care workers were required to sleep at or near their workplaces and could be woken if they were urgently required to treat residents. They were paid a fixed amount of money for each sleep-in shift performed, with one receiving the additional benefit of free accommodation and the other a supplementary amount for any time spent actually working throughout the night in excess of one hour. Both individuals claimed that they had been underpaid, on the basis that they had only been paid in respect of waking hours and had therefore not received NMW commensurate with the entirety of their sleepover shifts (regardless of whether they were called upon to assist).

The EAT delivered contradictory verdicts in their respective cases and a consolidated appeal to the Court of Appeal was permitted to clarify the issue. The CA considered that the essence of this type of ‘sleep in’ care home shift is that the relevant worker is actually – in practice - expected to sleep. Whilst asleep, but ‘on call’ to respond to urgent issues, the employees were merely ‘available for work’ and therefore not entitled to NMW. They were only entitled to remuneration for hours spent awake and actually working during sleepover shifts.

Whilst employers in the care sector may welcome this decision, individual working arrangements should always be assessed on a case-by-case basis; previous case law makes clear that sleeping is not itself incompatible with work and that subtle nuances may be important. We understand that an application to appeal this decision has been submitted.