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Are you sleeping peacefully?
Employers in the care sector have been aware for some time that they were liable for payments due when workers were sleeping-in as part of their duties following several tribunal cases over the last few years. However, in an about-turn the Court of Appeal has now held that care workers who sleep-in are not entitled to the national minimum wage (or national living wage) for the time during which they are asleep.

This applies to those employees who may be woken if required to undertake some specific activity, but otherwise are expected to sleep for all or most of the night. This was the decision in the joined cases of Royal Mencap Society v Claire Tomlinson-Blake and Shannon v J&P Rampersad (t/a Clifton House Residential Home) and it fundamentally changes what we had all thought to be the law so is a significant decision.

The appeals were all about sleep-in worker; those workers who sleep in a care home or other environment and is expected to sleep most of the time but is available to provide care support. It applies where workers are given suitable facilities for sleeping (normally a bed) at the place of work.

In the Mencap case the claim was brought by a support worker who worked an evening shift, and a morning shift the following day. In between the two shifts, she was paid a flat-rate for a nine-hour sleep-in at the premises. She was expected to assist where necessary to deal with incidents that might require her intervention overnight (for example, if the service-user was unwell or distressed), but the need to help was infrequent (it had only happened on six occasions over the previous 16 months). The support worker had successfully claimed that the national minimum wage should be paid for the whole of her hours spent sleeping, but this Court of Appeal Judgment overturns that decision.

The Court of Appeal has overturned much of the existing case law in deciding that the minimum wage does not have to be paid for all the sleeping hours. It has emphasised that there is an important distinction between those who have to undertake actual work and those who only need to be available for work. Those who undertake actual work, such as most security guards or those who are required to answer telephone calls throughout the night (but may have slack periods when they might have a nap), must be paid minimum wage for the time they work. However, those who are simply available to work, such as many care workers, are not entitled to minimum wage if they are able to sleep and have appropriate sleeping arrangements available.

If this applies to your business you will not have to pay national minimum wage throughout the night to those who are on-call, but who are expected to sleep on-site and are given a bed. However, you need to bear in mind that the law which applies to minimum wage is very different to the one which applies to working time. That means a care worker may be working even though asleep for the purposes of the Working Time Regulations (and therefore entitled to rest breaks such as the entitlement to have 11 hours between shifts, and subject to the limits on working time), when not entitled to the minimum wage.

This Judgment is likely to be a relief for those employers affected but for others there will remain some uncertainty as the right answer may vary depending upon the type of work undertaken and the likely intensity of the on-call provision and this will need to be assessed on a case-by-case basis. If you want advice on this aspect, please get in touch.

This decision removes (for minimum wage purposes) the oddity of describing someone as working during a shift when it is expected that they will spend substantially the whole time asleep. That seems sensible and is good news for employers in the care sector. However, it is possible that this case may be appealed to the Supreme Court and may not be the end of the story, so watch this space…
Posted on 30 Jul 2018

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