Are workers who are required to “sleep-in” as part of their role entitled to be paid the national minimum wage (NMW), even when they are asleep?

The Supreme Court today (Friday, March 19) handed down its decision answering just that question - in a judgment that will have a particular impact in the care sector.

The case centres around two care workers who were obliged to spend the night at or near their workplaces and expected to be asleep for most of the relevant period - but could be woken at any time in order provide assistance.

They argued that they are entitled to the NMW for the entirety of their working period, even when they were asleep, and not just for those hours when they were awake and called upon to work.

This argument was dismissed by the Court of Appeal in 2018 who held that the workers were simply “available for work” during these shifts, and only their waking working hours attracted the NMW.

Now, the Supreme Court has unanimously upheld the Court of Appeal’s decision. In its judgment weight is given to recommendations previously provided by the Low Pay Commission, the independent body that advises the government about the NMW.

In its first ever report in 1998 the Low Pay Commission recommended sleep-in workers receive an allowance to cover their shift, as is often the practice, and only the NMW when they are awake for the purposes of working. That was a recommendation that has been repeated in later reports.

This led the Supreme Court to determine that the wording of the relevant NMW regulations means that the NMW is only payable during the hours when sleep-in workers are awake for the purpose of working, and not for the entirety of their shift. You can read the full judgment here.

This decision will provide some welcome clarity for businesses whose workers carry out sleep-in shifts similar to those covered in the case. Until now, the legal rulings have swung back and forth in answering this question which has brought confusion for employers trying to ensure they meet their legal obligations.

For care workers however, the decision will be a disappointing one. It seems that further legislation would be needed in order to effect change to sleep-in workers entitlements - and it remains to be seen if that will be forthcoming.

It is also worth noting that the Supreme Court was only considering the impact for these particular employees and their particular working arrangements.

In reality, there is a breadth of possibilities of working patterns and sleep-in arrangements that employers will have implemented which may or may not fit the analysis of this case, in an area of law that continues to generate much discussion.

If you would like any advice on how this judgment might affect your workforce, please get in touch with a member of the team.

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