March 21, 2021

Supreme Court rules Sleepover Shifts are not covered by the National Minimum Wage

This post was written by: Ilinca Mardarescu

On Friday 19th March, the Supreme Court handed down its long-awaited decision in the case of Royal Mencap Society v Tomlinson-Blake.

The findings of this case are important for the care industry in particular, as the Supreme Court has held that employees who are expected to work ‘sleep in shifts’ do not earn the National Minimum Wage (NMW) for time spent asleep on the job.

The 32-page judgment highlights that a sleep-in worker who is “merely present” is treated as not working for the purposes of calculating pay under the NMW regulations. The argument that a worker must be available at such hours does not mean they will be expected to work during these hours. 

In the Court of Appeal, the Claimant had argued that as a Care Worker, she has to have a “listening ear.” Like in the Court of Appeal, the Supreme Court also rejected this argument as they concluded that having a “listening ear” does not amount to “working” for NMW purposes.

One of the many deciding factors, in this case, was the fact the judges gave weight to the Low Pay Commission’s recommendations that sleep-in workers should be paid an allowance rather than the NMW unless they are awake for work purposes.

This decision will no doubt come as a big relief to local authorities and employers in the care industry, particularly due to the effects of the COVID-19 pandemic on this sector. It spares the care sector of the risk of paying about £400 million in back pay if time spent sleeping was found to be working time.  

Up to now, the case of British Nursing v HMRC had indicated that sleep-in shifts could qualify for the national minimum wage. Although all of the judges in this case agreed the British Nursing v HMRC case was not a correct interpretation of the law (albeit they could not agree on the reasons). 

Undoubtedly, this judgment will be disappointing to unions and workers who were campaigning for better wages and conditions in an already low-paid sector.  We shall have to wait to see whether the Government will decide to intervene to change the sleep-in policy across the sector.