The next step

The Court of Appeal's ruling in the case mentioned in the article

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The NMW and workers who sleep at work

NWM and sleeping

Although the principle that underpins the national minimum wage (NMW) and the national living wage (NLW) is straightforward, i.e. the hourly rate of a worker’s remuneration is linked directly to their age, it throws up many questions for employers. One is whether the NMW/NLW is payable if an employee sleeps whilst they’re at work. The Court of Appeal has provided some much-needed clarification in the case of Royal Mencap Society v Tomlinson-Blake 2018 (see The next step ).

Sleeping on the job

Ms Tomlinson-Blake (TB) undertook a job role in which she supported two vulnerable adults living in their own home. In addition to working daytime shifts, TB was sometimes required to carry out a “sleep-in” shift between the hours of 10.00pm and 7.00am. During the sleep-in shifts, no specific tasks were allocated to TB but she was obliged to remain at the client’s house throughout the shift and provide any support that was needed. For a sleep-in shift, TB received a fixed payment of £29.05, not the NMW.

Making a challenge

TB claimed that she should be entitled to the NMW for the whole of a sleep-in shift. If correct, she would be due much more money. For example, if we use the 2018 NLW rate, which is £7.83 p.h. , TB would have received £70.47, i.e. an additional £41.42 per shift. Due to the potential financial implications, her employer, Royal Mencap Society (RMS), vigorously defended her claim.

Through the system

The tribunal and Employment Appeal Tribunal (EAT) both decided that TB was working for the whole of a sleep-in shift and entitled to the NMW. RMS appealed against the EAT’s ruling to the Court of Appeal.

The Court held that they should have concluded TB was “available for work” during a sleep-in shift, rather than working because she: (1) slept by arrangement at her place of work; and (2) was provided with suitable facilities for doing so, i.e. her own bed and bedroom.

Tip. In this situation the sleep-in exception in the National Minimum Wage Regulations 2015 applies and the worker should only receive the NMW/NLW for the hours they’re required to be awake.

Important point

Importantly, this ruling doesn’t mean that any worker who has the opportunity to sleep whilst at work can be denied the NMW/NLW during their shift using the sleep-in exemption. It will all boil down to what they are required to actually do.

Tip. The NMW sleep-in exemption will not apply where a worker is permitted to sleep between tasks. The Court of Appeal gave the example of a security guard who must patrol the premises from time to time throughout the night but may sleep for short periods between patrols; they’re entitled to the NMW for the whole shift.

For the Court of Appeal’s ruling in this case, visit http://tipsandadvice-personnel.co.uk/download (PS 20.15.03).