The Supreme Court has ruled that care workers on sleep-in shifts are only entitled to the national minimum wage (NMW) for the time spent performing work tasks or awake for that purpose, and not for time spent asleep. (Royal Mencap Society v Tomlinson-Blake, Shannon v Rampersad)
In the absence of a clear definition of work for these purposes, the Court referred to the Low Pay Commission’s reports (which the NMW regulations were intended to implement) as an aid to construction. These recommended that on call sleep-in shifts should be remunerated but with an allowance and not the full NMW. The Supreme Court therefore disagreed with earlier caselaw suggesting that, depending on the facts, sleeping-in could be viewed as work itself and eligible for the NMW, including when asleep. Sleep-in shifts are to be treated as availability for work only. The regulations provide that availability for work at or near the workplace is work for NMW purposes except where the worker is at home or, for sleep-in workers, it is spent not actually working nor awake for that purpose.
The ruling has lead to calls for legislative change, not least as the LPC’s recommendation for an allowance for time spent sleeping is not a legal requirement. The case also flags interesting questions (which were mentioned but left unanswered by the Court) in light of the increased prevalence of home-working due to the pandemic, particularly for those doing hourly-paid jobs previously at the employer’s premises, where the demand for tasks to be performed is intermittent. Will such a worker now fall foul of the home exception to availability for work counting for NMW purposes? Or can ‘home’ be construed as a place other than the usual workplace so that, given the exceptional nature of relocation due to the pandemic, the home exception is to be treated as not applicable and the time spent during normal working hours waiting for work to come in is still actual work for NMW purposes? Does the position change if the hours are during the night and the fact that it is currently being carried out at home means that the worker is now able to sleep in a way not possible when working on the employer’s premises? Is the key factor whether there is now an agreed expectation that the worker can sleep or pursue their own activities for a substantial chunk of time? Lord Kitchin did make the point that making a cup of tea or even having a nap between tasks is not necessarily inconsistent with actually working. Whilst home-working remains a temporary response to the pandemic, it is perhaps unlikely that employers will seek to change pay practices to pay only for hours when tasks are performed; however, this could change if home-working becomes more permanent and the boundaries of this judgment may then need to be explored further.
(Note that this case does not impact on what counts as working time for Working Time Regulations purposes.)