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Can you sleep and work at the same time? The Court of Appeal suggests not!

August 1, 2018
Employment Law

The question of how you calculate the national minimum wage (NMW) for care workers undertaking ‘sleep-in’ shifts has been troubling us for years.  Given that the Court of Appeal recently considered the issue in the case of Mencap v Tomlinson-Blake, we might have hoped that the position would now be clear.  Instead, it’s possible that the situation is even more confused than ever!  Read on to find out more.

The issues

There have been a large number of reported cases on this subject, many of which have concerned workers who are required to be ‘on call’ and remain at their normal place of work throughout their shift.  However, if they aren’t needed, they can simply spend their time as they choose, including getting a good night’s sleep.  

The case law has attempted to distinguish between two quite similar situations:-

·       Those cases where someone sleeps on site (by arrangement), is regarded as being ‘on call’, but is only working for NMW purposes when they are awake and called upon to do something; and

·       Those where the person sleeps on site and could be regarded as working simply by virtue of being present on the premises, regardless of whether they are doing anything or even whether they are asleep or awake.

In the first situation, the NMW is only payable when the person is awake and working.  In the second situation, the NMW is payable for the entire shift.

Until now, it has felt like the majority of the reported cases have gone in favour of the worker.  Having considered a variety of factors, the courts and tribunals have shown a willingness to conclude that ‘sleep-in’ shift workers are entitled to the NMW for their entire shift, regardless of how much ‘work’ they are required to undertake.  However, in the Mencap case, Lord Justice Underhill appears to have moved the goalposts significantly, adopting the default position that ‘sleep-in’ shift workers are not ‘available’ for work when they are asleep.  As a result, they are not entitled to the NMW unless called upon to do something.

What does this mean?

This Court of Appeal decision appears to ‘reset’ the law in this area, seemingly making it much less likely that care workers will be able to claim the NMW for the full length of their ‘sleep-in’ shifts. 

Companies providing care services and those meeting the cost of care (including the public sector) will be pleased with this decision.  Others will question whether ‘cheaper’ care costs should be achieved on the backs of workers who are already amongst the poorest paid in society.  We will leave it to others to try to square this particular circle!  However, UNISON (one of the unions involved in this dispute) has indicated an interest in taking this case to the Supreme Court.  In the circumstances, this might be for the best.

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