Following our brief update in July this year after the decision in Mencap v Tomlinson-Blake, we have had numerous enquiries from employers who engage sleep-in workers asking us to confirm that they are now off the hook in terms of paying national minimum wage to their sleep-in workers for the duration of their shifts.
The decision in July is not however, a get out of jail free card for employers. The Judge made it very clear that any decision involving sleep-in workers and the payment of national minimum wage will be fact specific.
In Mencap v Tomlinson-Blake the Judge stated that this particular judgment is limited to the facts of sleep-in workers who 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 but may be woken if required to undertake some specific activity.”
The key facts in this case were that;
- The Claimant slept by arrangement at her place of work;
- She was provided with suitable facilities for doing so;
- She almost always got an uninterrupted night’s sleep; and therefore
- She is to be treated as being available for work during those hours she is asleep as opposed to actually working.
The critical difference is between simply being available to work and actually working. When this is applied to the care industry (and to other sleep-in workers) more generally, the judgment means that the only time that counts for NMW purposes is time when the worker is required to be awake for the purposes of working.
These cases are, and will continue to be, fact specific. For example, had the Claimant in this case not actually been able to consistently sleep through the night, the Court of Appeal may well have found differently. The Court of Appeal seems to suggest that where there is the expectation that the worker will be woken frequently during a shift, the entire duration of the shift would constitute actual work and so count for NMW purposes.
In any event, in August 2018, UNISON* asked the Supreme Court for leave to appeal this decision so this issue will very much be one to continue to watch.
However, employers should follow the decision as it stands to avoid incurring any contractual liability for arrears of National Minimum Wage, employers would also be well advised to set aside a sum of money so that should any appeal of this decision be successful, they are already well equipped to deal with making good any arrears.
*(UNISON was famously successful last summer in contesting the lawfulness, or otherwise, of Employment Tribunal fees).