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Sleep-in shifts and minimum wage

Posted on 19th March 2021 in Employment

Posted by

Stephen Jennings

Partner and Solicitor
Sleep-in shifts and minimum wage

The Supreme Court has now issued its much anticipated Judgment in the case of Royal Mencap Society v Tomlinson-Blake, which was delayed by the death of one of the Justices.

The case concerned how the national minimum wage (NMW) should be calculated for workers who work sleep-in shifts.

Mrs Tomlinson-Blake provided day care for two vulnerable adults, for which she was paid on a ‘salaried hours’ basis. She also did a sleep-in shift for specified hours, which is classed as ‘time work’ under NMW legislation. She was permitted to sleep during the sleep-in shift but was required to remain at the home of the two adults for whom she cared. She had no duties to perform during the night shift except to “keep a listening ear out” and (rarely) to attend to any emergency that arose. Mrs Tomlinson-Blake’s case was that each of the hours of the sleep-in shift should be included in the calculation of her entitlement to the NMW.

 

The Supreme Courts decision

  • It is clearly not the position that, simply because at a particular time an employee is subject to the employer’s instructions, he is necessarily entitled to a wage.
  • Not all activity which restricts the worker’s ability to act as he pleases is work for the purposes of the NMW.
  • The basic proposition is that employees are not doing time work for the purposes of the NMW if they are not awake. However, the regulations go further than that and state that not only are they not doing time work if they are asleep: they are also not doing time work unless they are awake for the purposes of working.
  • If the employer has given the 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. Only the period for which he is actually awake for the purposes of working is included.

So, good news for employers of carers.

 

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