Tue 07 Aug 2018

No pay if you are asleep on the job

The Court of Appeal has recently considered whether workers should be paid the National Minimum Wage for the entirety of "sleep-in" shifts.  

The National Minimum Wage Regulations 2015 provide that workers are entitled to be paid for "time work".  Time work covers all time that is actually spent working.  By virtue of regulation 32(1) it also includes hours when the worker is not actually working if they are "available, and required to be available, at or near a place of work for the purposes of working" with two exceptions.  The first is the "at home exception" where the worker is at home (because his home is at or near the workplace) and the second is the "sleep-in exception" when the worker sleeps by arrangement at or near the place of work and is provided by the employer with suitable facilities for sleeping.  The case law deriving from the EAT on the question of pay during "sleep-in shifts" has been inconsistent. 

The matter has now been considered by the Court of Appeal in Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad (t/a Clifton House Residential Home). The judgement includes a useful overview of both the statutory provisions and recent authorities. 

The Court held that "sleepers-in" - i.e. 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 - are to be characterised as "available for work" rather than actually working.  This means they fall within the "sleep-in" exception and are only entitled to be paid NMW when they are required to be awake for the purposes of working.   

The cases before the Court concerned two care workers who were contractually obliged to spend the night at or near their workplaces and were expected to sleep for most of the period, although they could be woken if their assistance was required.  Both workers received a fixed sum for the shift.  Ms Tomlinson-Blake was also paid an additional hour's pay and Mr Shannon received free accommodation, in addition to the fixed sum.  Both workers claimed they were being underpaid on the basis that the whole shift constituted hours they should be paid for.  The EAT had previously found in favour of Ms Tomlinson-Blake, whereas in Shannon the EAT had found for the employer.  Both appeals were heard together.   

When the general conclusions set out in the Court of Appeal judgement were applied to the facts of these cases the Court found if favour of the employers - the judgement of the EAT in Ms Tomlinson-Blake's case was overturned and the EAT judgement in Shannon was upheld.   

This judgement will come as a relief to employers in the care sector, both private companies and local authorities.   However, employers need to be aware that not all night shift work where employees can sleep will fall into this category.  The Court's judgement centred around the fact that the "essence of the arrangement is that the worker is expected to sleep".   Not all night shifts will fall into that category.

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