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.
It was decided that workers who 'sleep-in' (i.e. 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, within the meaning of NMW Regulations 1999 rather than actually 'working', and so fall within the terms of the 'sleep-in' exception.
Therefore, they are only entitled to be paid the national minimum wage when they are awake to carry out any actual duties. They may be paid a flat rate allowance for the remainder of the time but there is no entitlement to the minimum wage for that remainder period.
The point is particularly significant in the care sector where sleep-in duties are common. However, it does not just apply to the care sector. For example, it may apply to night-watchmen/security guards/hotel porters if they are provided with suitable facilities for sleeping at work and are expected to sleep for most of their shift. The judgment is important because it has been estimated that hundreds of millions of pounds may have been due in back pay to workers if this decision went the other way and also because it affects pay obligations going forward.
Please note that consideration is being given to an appeal to the Supreme Court for a final decision on the matter.
By Guy Woodcock
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