UK: Supreme Court considers whether the National Minimum Wage should apply to ‘Sleep-in’ Shifts
Ms Tomlinson-Blake, a care support worker employed by Mencap, provided care to two individuals with learning disabilities during overnight ‘sleep-in’ shifts. She had no duties as such, except to have a “listening ear” while asleep and to attend to emergencies. But these were infrequent – there had only been six occasions in 16 months where overnight intervention had been necessary. Ms Tomlinson-Blake received an allowance for the whole sleep-in shift plus an hour’s pay and brought a claim for the NMW for the full duration of her sleep-in shifts.
The Supreme Court ruled that workers on sleep-in shifts are entitled to have their hours included in the NMW calculation only when they are “awake for the purposes of working”. During this time, they were “available for work” (rather than carrying out “actual work”) meaning that they were entitled to NMW.
The Supreme Court also overruled two important appeal court decisions: a case in which it was found that workers were working throughout the night shift, even though the work was intermittent and they were permitted to sleep (British Nursing Association v Inland Revenue) and another which found that a nightwatchman who was responsible for answering the phone and dealing with security alarms on an overnight shift had been held to be working throughout the shift, even though it was very rare that he was not able to sleep (Scottbridge Construction Ltd v Wright).
This decision is very significant for employers in the care sector. That said, given that the Court overruled the two appeal court decisions, it will also be significant for businesses outside the care sector which rely on workers sleeping over.
The Supreme Court made it clear that not every worker who is permitted to take a nap between tasks is a sleep-in worker and, depending on the facts, the worker may be working as opposed to being available for work, even if the work is intermittent.