There have been a lot of cases over the past year or so looking at what amounts to working time. This is important as where time is “working time” the national minimum wage is payable.
In May last year, we reported an EAT case where it was decided that sleep-in shifts can count as working time. There has been concern that this adds cost to businesses, particularly the care industry which is already struggling with costs pressures.
The Court of Appeal case of Royal Mencap Society vs Tomlinson-Blake has been reported today. It has made headlines due to the decision that workers have to be awake to be entitled to the national minimum wage. The Judge said that workers were not entitled to the national minimum wage if they were just available for work but sleeping.
It is yet to be seen how this case sits with other working time cases, such as the CJEU case from February this year which said that where a worker was required to be in a particular location on stand by, then that was working time.
Therefore, do not be surprised if this is not the last case on the subject.