The question of how you calculate the national minimum wage (NMW) for workers undertaking ‘sleep-in’ shifts has been troubling us for years.  So, has the Supreme Court finally put the issue to bed?

The legal issue

There have been a large number of reported cases on this subject, many of which have concerned care workers who are required to be ‘on call’ and remain at their normal place of work throughout their night shift. However, if they aren’t needed, they can simply spend their time as they choose, including getting a good night’s sleep. In such cases, should the worker receive the NMW only when they are awake and called upon to do something? Or could they be entitled to the NMW for the entirety of their shift, regardless of whether they are doing anything or even whether they are asleep or awake?

When the case of Mencap v Tomlinson-Blake went in front of the Court of Appeal back in 2018, the judges adopted the 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.  But did the Supreme Court agree?

The Supreme Court’s decision

In simple terms, the Supreme Court upheld the Court of Appeal’s decision. The Supreme Court justices approached the case by looking at the stated purpose and intention of the NMW legislation. It concluded that Parliament had intended to accept the recommendations of the Low Pay Commission which, in turn, had stated that sleep-in shifts should not be covered by the NMW. The Supreme Court therefore ruled that the law should be interpreted in a manner consistent with that intention and that is an end to the matter.

Now what?  

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 in society.  After all, does it sound quite right that a worker can be required to sleep at their employer’s premises, yet be entitled to nothing in return? We will leave it to others to try to square this particular circle!

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