BEIS issues guidance on NMW for sleep-in workers

Written by Brabners LLP

In March, the Supreme Court finally issued its judgment in the joint cases of Royal Mencap Society v Tomlinson Blake and Shannon v Rampersad and another (t/a Clifton House Residential Home), ruling that workers who carry out sleep-in shifts are not entitled to pay for the whole shift and instead would only be entitled to pay whilst they were awake for the purposes of working.

Facts

Both cases involved care workers, Mrs Tomlinson-Blake and Mr Shannon, who, as part of their job role, were required to sleep at or near their workplaces so that they could be woken if necessary to provide care or assistance to the individuals they supported. Whilst it was expected that they would sleep most of the night, they were to wake up and work if their assistance was required. Both care workers received a fixed allowance for their overnight shift.

Mrs Tomlinson-Blake had no specific jobs to carry out during her sleep-in shifts, but was required to remain at the care home throughout the night in case her assistance was needed. Over a period of 16 months, she was only required to wake up and work 6 times during her sleep-in hours.

Mr Shannon was required to be on call in free accommodation provided by the care home and was additionally paid £90 per week. He was only required to assist when requested by the night care worker who was on duty at the care home, however, this was rarely requested of him. He was required to be in the flat between 10pm and 7am but he could sleep if his assistance was not requested.

Both workers alleged that they should receive at least the National Minimum Wage (“NMW”) for the whole of their sleep-in shifts, arguing that the full shift counted as time worked, even when they were sleeping.

Mrs Tomlinson-Blake was initially successful at both the Employment Tribunal and the Employment Appeal Tribunal, who agreed with her that she was performing time work throughout the whole of her sleep-in shifts.

In Mr Shannon’s case, however, the Employment Appeal Tribunal found in favour of his employer and concluded that he was not entitled to NMW for the whole shift.

Both cases were appealed to the Court of Appeal, which judged that sleep-in workers in this situation were available for work rather than actually working. So, they were not entitled to be paid the NMW for the whole of the sleep-in shift, but only for the times when they were required to be awake for the purposes of working.

The Supreme Court Decision

The Supreme Court unanimously agreed with the Court of Appeal, concluding that a period of time when a person is positively expected to be asleep cannot be classified as a period of work in accordance with the National Minimum Wage Regulations 2015.

The Supreme Court noted that the two concepts of “working” and being “available for work” must be kept distinct, although in reality it might not always be easy to differentiate between the two.

What does this mean for umbrella companies?

The Supreme Court’s decision has brought an end to many years of uncertainty on the issue of calculating pay due for sleep-in shifts. This case is a welcome decision for employers and agencies in the care sector, as had the decision gone the other way, employers could have found themselves facing multiple claims for underpaid NMW, which in some cases could have been financially devastating. Some care workers, however, are now calling for the issue to be revisited by Parliament.

BEIS guidance

In light of the Supreme Court’s decision, the Department for Business, Energy and Industrial Strategy (“BEIS”) has issued updated guidance on how NMW should be calculated for sleep-in workers.

The guidance is a useful starting point and provides some helpful examples of circumstances when NMW would be payable. Importantly, the guidance differentiates between cases where a sleep-in worker is only entitled to NMW for those parts of a shift when they are awake for the purpose or working (not for periods when they are asleep), and workers who “are expected to carry out tasks for all or most of a shift, and are only permitted to sleep between tasks where possible (such as napping when not busy)”. In the latter case, the guidance suggests that it is “likely” that such workers should be paid at least NMW for the whole shift, including for any time spent sleeping. As noted above, assessing which situation applies in practice will not always be straightforward and each individual employee’s circumstances and entitlements should be considered on a case by case basis.

 

 

This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership.

 

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