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Sleeping on the Job – should you be paid?

Many people have been waiting for the outcome of the long-running Supreme Court case originally brought by two care workers – one against charity Mencap and the other one against Surrey care home, Clifton House. In both cases the employees were not allowed to count their sleep-in shifts as “time work” or as part of their salaried hours unless they were awake for the purposes of working.

The decision on this complex matter was handed down by the Supreme Court on 19th March 2021.

The judges upheld the guidance that workers should be given an allowance during sleep-in shifts to be available should the people they look after need assistance during the night. But they have declared that such workers do not have to be paid at the National Minimum Wage (NMW) during that period unless they were actually awake and working. Many employers in the care sector paid an allowance for sleep in shifts rather than the full NMW rate. This decision has come as a huge relief to employers in the care sector and to the bodies funding such care, who would have stood to pay millions of pounds in backpay, had the decision gone against them.

Many people will feel that this decision is the wrong one because if an employee is not able to leave the premises, he or she is clearly deemed to be “available to work”. But the Court has now issued its final decision.

It is interesting to note that in the recent Uber case about pay for workers, the Court decided that the workers should be paid at the NMW when they were simply logged onto the Uber App as opposed to only being paid when they were driving. Despite the fact that Uber has now introduced changes as a result of the judgment against them, they have still not implemented that element.

This case is also relevant to those in other sectors who have staff who have to be available “on call” such as those providing emergency security or IT support, for example.
Posted on 31 Mar 2021
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