Follow up

Royal Mencap Society v Tomlinson-Blake and another case

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Sleep-in staff not entitled to minimum wage for whole shift

Court of Appeal ruling upheld

In Royal Mencap Society v Tomlinson-Blake and another case 2021 (see Follow up ), the Supreme Court has upheld the Court of Appeal’s earlier ruling that care workers who were required by their employers to sleep at or near their workplace, and to be available to give assistance to service users if needed, were only “available for work” under regulation 32 National Minimum Wage Regulations 2015 (SI 2015/621) . During this time, they weren’t actually working, so this meant that they were entitled to the national minimum wage (NMW) only for those hours during which they were “awake for the purposes of working” .

Awake for the purposes of working

As the worker must be awake for the purposes of working to be entitled to the NMW, the Supreme Court then said that it’s necessary to examine the arrangements to see what the worker is required to do when not asleep but within the hours of the sleep-in shift. If the only requirement on them is to respond to emergency calls, their time in those hours isn’t included in the NMW calculation unless they actually answer an emergency call.

Pro advice. This is still the position regardless of how often the worker answers emergency calls.

Royal Mencap Society v Tomlinson-Blake and another case