HM Insights

National Minimum Wage and 'sleep overs' - when is a worker entitled to NMW when sleeping in at work?

The way in which ‘sleep-in’ workers are to be treated for the purposes of the entitlement to the National Minimum Wage (NMW) was addressed by the Court of Appeal in Royal Mencap Society v Tomlinson-Blake, Shannon v Rampersad.

The decision of that case was that workers who "sleep in" are only entitled to be paid the national minimum wage when they are awake to carry out relevant duties.

The judgment is of particular importance, because if it the Court had found in favour of the employees, then hundreds of millions of pounds may have been due in back pay to workers.


What is the issue?

It is very common in the care sector for workers to agree to “sleep in” overnight at premises where elderly, disabled or otherwise vulnerable people live, on the basis that they can be called on if assistance is required in the night but otherwise have no duties.

The agreement to do so may be either free-standing or an add-on to a contract of employment involving other duties and will typically be in return for a fixed amount, with an entitlement to further pay if the worker is in fact called on.

Residential staff, both in the care sector and elsewhere, may also be required to be “on-call” overnight. The broad issue in both these appeals is whether the entirety of the period spent on the premises under such arrangements must be taken into account in calculating an employer's obligations under the National Minimum Wage Regulations or only such time as is spent actually performing some specific activity.

What was the conclusion?

Lord Justice Underhill determined that workers who ‘sleep-in’ (ie they are contractually obliged to spend the night at or near their workplace on the basis that they are expected to sleep for all or most of the period, in suitable facilities provided by the employer, but may be woken if required to undertake some specific activity), are to be characterised for the purpose of the NMW Regulations as ‘available’ for work, rather than actually ‘working’.

Therefore, they are only entitled to be paid the national minimum wage when they are awake to carry out any relevant duties.

Where now?

The rumour is that there will be a further appeal to the Supreme Court but this has yet to be confirmed.

In the meantime employers can sleep slightly easier at night in the knowledge that workers are only entitled to be paid NMW for time they are awake to carry out relevant duties.