Sleep Ins & Calculating the National Minimum Wage
Last month, the Supreme Court handed down its judgment on the two joined cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad & Another which related to the thorny issue of ‘sleep ins’ and whether workers should be paid the National Minimum Wage (NMW) for the duration of the shift, or only for the periods when they are actively working.
The decision of the Supreme Court was to dismiss the cases of Tomlinson-Blake and Shannon. They decided that ‘time being available to work’ does not amount to ‘working time’ for the purposes of calculating the NMW, and that there is a specific exclusion in the legislation for sleep in workers.
While the decision will disappoint many care workers who sleep on site and keep a “listening ear” in case of an emergency, it will come as great relief to care homes, domiciliary care providers, and other organisations, many of which would have struggled to meet the inevitable backpay demands had the court found in favour of Tomlinson-Blake and Shannon.
Sleep Ins & the Background to the Case
For nearly 2 decades the tribunals and courts had been creating a line of judgments relating to ‘sleep-ins’ and the NMW, and whether or not time spent sleeping or being available to work should be considered for the purposes of calculating the NMW.
British Nursing Association v Inland Revenue  EWCA Civ 494 got the ball rolling in what turned out to be the wrong direction and decided that the time spent on the shift in the night (even if sleeping) should be used for the purposes of the National Minimum Wage. Walton v Independent Living Organisation Ltd  EWCA Civ 199 tried to narrow the approach of British Nursing and stated there was a clear distinction between ‘working’ and being ‘available to work’.
Due to this difficulties in reconciling these two positions, case law since has been decided on precise factual situations. This has resulted in a complicated and confused situation which has been unhelpful for both employers and employees.
Mrs Tomlinson-Blake was a qualified care support worker. She was employed by The Royal Mencap Society as part of a team to provide 24h care to two vulnerable adults at their own home. She was paid a salary for her work. She also completed a ‘sleep-in shift’ for specific hours. During these shifts she could sleep, relax, but had to remain at the home of the service. She was not required to do any duties but “keep a listening ear out” and to attend to an emergency if there was one. An emergency had occurred on approximately 6 times in the 16 months prior to the tribunal hearing. She was paid an allowance for the shift plus one hour’s NMW pay.
Mr Shannon was an on-call night care assistant at a registered residential care home. He was provided with free accommodation and utilities and a payment of £50 per week. It was a condition of his employment that he was in the accommodation from 10pm to 7am but permitted to sleep in that time. He was only very rarely called upon by the night care worker on duty. He believed that he should have been paid the NMW each night, which he contended had amounted to almost £240,000.
The law has been further complicated in this area due to the changes to the National Minimum Wage Act 1998, National Minimum Wage Regulations 1999 (Amendment) Regulations 2000, and later the 2015 Regulations, and the Reports put forward by the Low Pay Commission. Unusually, it was decided that the recommendations by the LPC would be bound into law unless there had been specific discussion and exception to the recommendations raised in Parliament. This did, therefore, create an ‘opt out’ situation rather than Parliament voting positively for something to be included. One also has to pay particular attention to the LPC reports in order to understand the purpose and intentions behind its recommendations and approach.
Supreme Court Decision
The Supreme Court took a purposeful approach to considering the question over whether sleep-in time could be work time for the purposes of calculating the NMW.
The starting point was the recommendation made by the LPC in its First Report which stated that sleep-in workers should receive an allowance (agreed between the parties) and not the NMW unless they were awake for the purposes of working. The LPC did not contemplate that a person in the position of a sleep-in worker could be said to be actually working if they were permitted to sleep.
The Supreme Court also considered that phrases in the rules and regulations should not be read in isolation, but read in the round. The expression “awake for the purpose of working” was deemed to be a single phrase, and the word “awake” could not be read on its own.
In a key part of their judgement the Supreme Court stated that not only are workers not doing time work if they are asleep: they are also not doing time work unless they are awake for the purposes of working. This meant it was necessary to look at the arrangements between the employer and the worker to see what the worker was required to do when not asleep but within the hours of the sleep-in shift. In a situation where an employer has given a worker the hours in question as time to sleep and the only requirement on the worker is to respond to emergency calls, the worker’s time in those hours is not included in the NMW calculation for time work unless the worker actually answers an emergency call. The time spent answering any call is included. It therefore followed that however many times the sleep-in worker is (contrary to expectation) woken to answer emergency calls, the whole of his shift is not included for NMW purposes. Only the period for which he is actually awake for the purposes of working is included.
Sleep Ins Conclusion & Clarity for Employers
While not welcome for many employees who are required to sleep on-site to deal with potential emergency situations, the decision of the court brings clarity to this area of the law. Arguments about the fairness of the position will continue will nonetheless continue. One commentator noted that in the recent Uber decision, it was held ‘on call’ time when the drivers, who were predominantly male, had switched on the App should be taken into account when calculating NMW. Following this decision, the equivalent in care, where the workers are predominantly women, is only for the period of time actually worked (in an emergency). Ultimately, the statutory exception in the MNW regulations, and the comments in the Report of the LPC has created this anomaly.
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Article written by Peter Holmes, Wirehouse Employment Law Consultant