312: No entitlement to national minimum wage for sleep-in shifts

In the landmark decision of Royal Mencap Society v Tomlinson-Blake, the Supreme Court has clarified that sleep-in residential care workers are entitled to the national minimum wage (NMW) only when they are awake and actually working, not when they are asleep and just available for work. This means that a number of earlier decisions on sleep-in shifts can no longer be relied on.

Ms Tomlinson-Blake was employed as a care worker supporting vulnerable adults in their homes. Her shifts included overnight sleep-in shifts during which she was not allocated specific tasks but was required to listen out in case her help was needed during the night. The expectation was, however, that she would get an uninterrupted night’s sleep. Ms Tomlinson-Blake was paid £29.05 for a nine-hour sleep-in shift. She brought a claim arguing that every hour she spent on the sleep-in shift should be paid the NMW, even when she was asleep.

The Supreme Court has now agreed with the Court of Appeal that under the wording of the NMW legislation, Ms Tomlinson-Blake was not entitled to the NMW for every hour on shift. For a worker to be paid NMW on a sleep-in shift, they must be ‘awake for the purposes of working’, meaning that they must be available and have some duties to perform. It is not relevant that they have to keep a ‘listening ear’ out while asleep. The Supreme Court noted that the rules on sleep-in shifts were originally based on the recommendations of the Low Pay Commission (LPC) in 1998, a statutory body which was set up when the NMW was first enacted. The LPC recommended in 1998 that sleep-in workers should receive an allowance and not the NMW, unless they were awake for the purposes of working.

This decision finally brings certainty to the issue of payments for sleep-in shifts and will be welcomed by many employers, particularly those in the care sector who were facing significant claims for backpay. However, it does not deal with the political issue of low pay in this sector, an area where there is now pressure for legislative change.