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Posted 16 July 2018
by Stephen Jennings

Sleep-in Shifts – the Court of Appeal Overturns Existing Case Law

Woman and Man in Wheelchair strolling in the Kurpark, Bad Homburg

In a decision which will have major implications for businesses providing care services, the Court of Appeal has overturned previous case law and decided that ‘sleep in’ workers are not entitled to the minimum wage for time spent asleep.

Broadly speaking, the National Minimum Wage Regulations 2015 distinguish between time actually spent working and time where the worker is merely available and required to be available, at or near a place of work for the purposes of working. The minimum wage is payable for the former but not for the latter. Previous cases have explored situations where workers were deemed to be working merely by being present at work, regardless of whether they were awake or asleep, and the state of the law until now was as set out in the Focus Care case. That case was authority for saying that a ‘multi-factorial’ approach was appropriate and it would be necessary to consider factors such as the purpose of employment, restrictions on the worker, the degree of responsibility and the immediacy of the obligation to provide services whilst ‘on call’. Only by weighing all of these up might a decision be made as to whether the minimum wage was payable.

The Court of Appeal has now rejected this approach. It referred back to reports of the Low Pay Commission. The Low Pay Commission was specifically referenced in the National Minimum Wage Act, which provided that any proposal to introduce legislation that differed from their recommendation should be referred to Parliament. The Low Pay Commission had recommended the minimum wage should not apply to situations where the workers are paid to sleep at work premises; no reference was made to Parliament and the government of the day had announced it intended to follow the Low Pay Commission’s recommendation. The Court of Appeal, therefore, felt itself justified to apply this approach, notwithstanding earlier conflicting case law.

UNISON is apparently considering an appeal to the Supreme Court – but for now, care providers will be heaving sighs of relief. However it is worth bearing in mind that this decision is limited to sleep-in workers who are “contractually obliged to spend the night at or near their workplace on the basis that they are expected to sleep for all or most of the period but may be woken if required to undertake some specific activity,”. It is, presumably, only a matter of time until we see further case law about how this decision applies to cases where there may be a more even division between sleep and undertaking specific activities, as may be the case where workers are regularly roused or, when roused, are required to undertake lengthy tasks.

If you have any questions regarding a matter similar to this, then please do not hesitate to get in touch with our experienced team of employment law solicitors.

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About the author

Stephen Jennings

Partner and Solicitor

Partner in the litigation department specialising in employment law, he is the relationship manager for many of the firm's employment clients