The Court of Appeal’s decision in the combined cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersand t/a Clifton House Residential Home [2018] (“Royal Mencap”) has altered the approach that should be taken to paying night shift workers who are required to undertake “sleep-in” shifts. It confirms that national minimum wage (NMW) is only payable when a worker is awake and carrying out relevant duties, departing from the previous approach that “sleep-in” workers are entitled to be paid NMW for their entire shift even though the majority of their time will be spent asleep.
Before Royal Mencap
Whether a worker was “working” for NMW purposes during a “sleep-in” shift has been the subject of a significant body of case law in recent years, with a number of Tribunals finding that workers were “working” during a “sleep-in” shift even if the individual slept for the entirety of the shift. A multifactorial evaluation is required to establish whether an individual was working for NMW purposes, including taking into account:
- whether the worker could leave the premises during the relevant period;
- whether they could be disciplined for failing to be present at the premises for the entire period;
- whether the employer had a regulatory or contractual duty to ensure that someone was present at the premises for the entirety of the period; and
- the degree of responsibility undertaken by the worker whilst on the shift.
If the above factors were satisfied then the worker would be deemed to be working during the entire shift (and should therefore receive NMW) even if the worker spent the majority of their shift asleep.
The Decision in Royal Mencap
The judgment in Royal Mencap overturns the above approach, drawing a clear distinction between “working” and “being available for work”. The Court of Appeal held that, in the context of “sleep-in” shifts, the only time that counts for NMW purposes is the time when the worker is required to be awake for the purposes of working.
Comment
This decision is likely to be welcomed by the care sector, which has been under increased financial strain following funding cuts. However, it applies only to those who work “sleep-in” shifts and it does not apply to other types of arrangements where the employee is not required to “sleep-in”.
This decision is expected to be appealed.