Last reviewed 5 May 2021
The Government has released new guidance on calculating wages for “sleep in” shifts due to a recent Supreme Court ruling.
National Minimum Wage (NMW) law dictates the minimum hourly rate that workers should be paid when conducting their role for an organisation. However, confusion can arise for situations where employees are permitted to sleep for some, or all, of their shift and only work when called upon. This is predominantly seen in the care sector and, indeed, was the subject of a long-awaited Supreme Court ruling in March.
In the case of Royal Mencap Society v Tomlinson Blake, the Supreme Court held that there is no entitlement to the National Minimum Wage for time spent asleep during a care worker’s sleep in shift. In forming their decision, the Court held that National Minimum Wage law contained provisions in relation to “sleep-in shifts” that, when applied to this case, meant the claim had to fail. However, they were clear that this only applied to shifts were it is “expected” the worker will spend some time asleep.
As a result of the Tomlinson Blake ruling, the Government has now updated its guidance on calculating the NMW. In particular, it outlined five key examples in which the findings of the Supreme Court might apply, which have been republished below:
Example 1: worker spending time awake but woken only occasionally to perform tasks
A care worker is provided with sleeping facilities and expected to sleep most of the night, but is required to keep open a “listening ear”. They spend some of the shift awake reading a book in bed for pleasure while keeping a “listening ear”, although they would be permitted to sleep during that time if they preferred. They are not entitled to the minimum wage while they are awake and reading or while sleeping, as in both cases they are not awake for work purposes.
Example 2: worker taking calls on a nightshift
A worker answers very occasional telephone calls on a nightshift and is expected to sleep in a suitable bed for most of the night between calls. The worker is only eligible for the minimum wage for the time spent awake for the purpose of answering calls and performing any other duties.
Example 3: worker permitted to nap during working shift
A security guard performing time work is permitted to take a nap in a chair between regular tasks. They are expected to be awake for the purpose of working for most of the shift, and so would likely be working and eligible for the minimum wage for the entire shift. In any event, on the basis that they have no suitable sleeping facilities, they would be eligible for the minimum wage for the entire shift.
Example 4: worker woken to deal with emergency but not required
A care worker who is expected to sleep most or all of a night shift is woken to provide back-up to another care worker in dealing with an emergency. They get dressed and sit near their fellow worker, but as it turns out they are not needed and are able to read the newspaper for an hour. They are still “awake for the purposes of working” for that hour and so eligible to be paid minimum wage for that hour.
Example 5: worker woken frequently contrary to original expectation
A care worker is expected to sleep for most of the night. Initially the worker is woken only occasionally to attend to someone. Only the period for which the worker is actually awake for the purposes of working is included in the minimum wage calculation.
For the full government guidance, please click here.
National Minimum Wage: overview and in depth