Case law | Sleep-in shifts: what hours count for the National Minimum Wage?
This case concerns the appropriate rate of pay for a worker when completing a ‘sleep-in’ shift and being on-call for the purposes of the National Minimum Wage Regulations 2015 (‘NMW’).
Mrs Tomlinson-Blake was a care support worker employed by the Royal Mencap Society. In addition to her day care duties – for which she received a salary (salaried hours work), she did sleep-in shifts working specific hours receiving a flat rate allowance of £22.35 plus one hours pay of £6.70 (time work).
She was permitted to sleep during this period but was required to remain at the home of the two vulnerable adults for whom she cared throughout her sleep-in shift. Other than to “keep a listening ear out” while asleep, she had no duties to perform during the night. According to the evidence, she had been disturbed only about six times in the period of 16 months preceding the hearing in the employment tribunal.
Both the ET and EAT had found in favour of Mrs Tomlinson Blake. The Court of Appeal overturned those decisions. The Court of Appeal considered the exceptions available under NMW (at Regulation 27 and 32) and drew the distinction between when Mrs Tomlinson Blake was ‘available’ to work and when she was actually ‘working’ during a sleep-in shift i.e. when she was there but asleep, and when she was awake for the purposes of working.
The Court of Appeal found that Mrs Tomlinson Blake was only entitled to be paid the national minimum wage when awake to carry out any relevant duties.
For the purposes of NMW, in determining whether a worker has been paid the appropriate rate it’s necessary to calculate the total remuneration in a pay reference period and the number of hours worked. To do so, it’s necessary to identify which hours count as working time for the purposes of NMW and how many of those hours are worked over the applicable pay reference period.