Asleep on shift, should employees be entitled to minimum wage?

31 October 2018 | Applicable law: England and Wales

A recent decision on the National Minimum Wage for individuals on sleep-in shifts, was welcomed by the care sector in general and charities in particular. In Mencap v. Tomlinson-Blake the question was whether a sleep-in worker should be entitled to the National Minimum Wage ('NMW') for her whole shift, although she might be asleep for all or most of it. 

Some previous case law (and in particular the 2003 case British Nursing Association v Inland Revenue) had provided that workers who were sleeping during shifts were still working and should be paid accordingly. Other cases however had adopted a different analysis and there was therefore considerable uncertainty about the correct approach.

Ms Tomlinson-Blake was contractually obliged to spend the night at, or near, her workplace and was ordinarily asleep for the majority of her shift. For these overnight shifts, Mencap paid workers a fixed sum, and Mrs Tomlinson-Blake was paid an additional sum if she was called on during the night for more than one hour. She argued however that the whole sleep-in shift should be classified as work for NMW purposes and that she should receive the NMW for each hour of the shift, rather than a flat rate for the night.

The Court of Appeal disagreed and held that Mrs Tomlinson-Blake should be considered to be merely 'available for work', as opposed to actually working, during hours when she was asleep, albeit she was at or near her place of work. She was not entitled to the NMW when she was only 'available for work' and not actually working. Her claim therefore failed.

Although the Court of Appeal decision came as a relief to charities and other employers involved in the provision of care, it was disappointing to unions who have been campaigning for improved pay in this already low-paid sector. Charities who employ people to undertake sleep in shifts should nevertheless check the position with their legal advisers as the specific facts of the arrangement may affect an individual's entitlement to pay.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


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