Royal Mencap Society - Tomlinson-Blake: NMW not payable for time spent asleep

Court of Appeal – July 2018 

The Court of Appeal (COA) has ruled that a care worker who performed ‘sleep in’ shifts was ‘available for work’ and not 'actually working’ and so was not entitled to the national minimum wage (NMW) for the time spent asleep.

Facts

This case relates to a situation which had, up until this point, been the cause of much confusion for Employment Tribunals. Here, the employee operated in the care sector and regularly undertook overnight ‘sleep in’ shifts at premises in which elderly, disabled or otherwise vulnerable people lived. The idea was that she was on call to provide urgent assistance to these individuals if required but, aside from this, had no further duties. Due to the unsociable hours that these shifts required, the claimant was allowed to sleep whilst undertaking the role. In actuality, it was very rare that she was needed during the night and was therefore able to sleep through most of the shifts.

The issue here involved how the employee was paid for the overnight shifts. During any periods that she worked in the day she was remunerated at an hourly rate that reflected her NMW entitlements. However, during the ‘sleep in’ shifts, she was paid a flat-rate allowance plus the amount of one hour of pay to reflect the fact she may be woken up on occasion. As a result, the employee argued that the employer was not following Regulation 32(1) and (2) of the National Minimum Wage Regulations 2015, concluding she should have been entitled to the full NMW throughout the entirety of the shift, including the times when she was asleep.

Employment tribunal and Employment Appeal Tribunal

The employee’s claim was upheld by the original Employment Tribunal (ET) and by the Employment Appeal Tribunal (EAT). Both courts found that ‘time worked’ for NMW purposes included all times when the employee was available for work. As she was expected to be available throughout the night shift, she was entitled to the NMW even when sleeping.  

The EAT held that the question whether someone was ‘working’ when asleep was ‘multi-factorial,’ and therefore could only be determined from a ‘unique basket’ of factors. The difficulty arose when considering the potentially variable nature of their interpretation and the weight that could be given to individual areas. The court concluded that, ultimately, each factor required an individual assessment, worker by worker.

The employer appealed to the Court of Appeal.

Court of Appeal

The Court allowed the appeal, finding that the employee was not actually ‘working’ whilst asleep but was ‘available for work’.

In forming their decision, the Court referred to the First Report of the Low Pay Commission 1998, which they believed clearly showed an intention that ‘sleep-in’ shifts would not attract NMW protection for periods when the worker was sleeping. They found that both the ET and the EAT had erred by not looking at the clear distinctions between ‘working’ and being ‘available for work.’

The Court pointed out that the situation where the worker, by arrangement, sleeps at work is dealt with under the ‘available for work’ provisions. This must mean, said the Court, that it was intended that people on sleep ins are only ‘available for work’ rather than ‘working’.

The Court said that if the essence of the situation is that the worker is expected to sleep for the whole or most of the sleep in shift, then they are only ‘available for work’. This means that the only time which attracts NMW is the time spent awake for the purposes of working. The Court performed a detailed analysis of previous case law on the topic and held that some cases had been wrongly decided. One such case is Whittlestone v BJP Home Support Ltd, in which it was held that a worker was entitled to NMW for all sleep in hours because she would face disciplinary action if she left the workplace. Another was Esparon t/a Middle West Residential Care Home v Slavikovska which held that NMW was payable for all sleep in hours when there was a statutory requirement to have an appropriate number of qualified people the premises.

However, the Court distinguished the case of a night watchman who was permitted to sleep during his night shift (Scottbridge Construction v Wright), and telephone workers who were permitted to sleep whilst waiting for calls to come through (British Nursing Association v Inland Revenue) because it was determined that, in these cases, the workers were ‘working’ and not ‘available for work’.    

Notes for employers

Although this judgement may come as a relief to the care sector, who had been faced with enormous arrears of pay for these type of shifts, this judgement may still be appealed to the Supreme Court.  For now, employers who had begun to pay workers NMW for all hours of a sleep in shift in response to previous case law may wish to remove this practice but keep an eye on developments in case of an appeal to the Supreme Court. If the increased pay was implemented via a formal change to terms and conditions, another such formal change will have to be initiated by following a fair procedure to reduce pay.

The Government, in its NMW guidance, acknowledges the case and confirms it is assessing the position. It will be interesting to see the impact of this decision on the Social Care Compliance Scheme which was implemented to ease the impact of the previous case law on care sector employers while still ensuring workers received the back pay deemed payable; on any enforcement against care sector employers, and employers in any other affected sectors, not involved in the scheme.

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