When does National Minimum Wage (NMW) apply on a sleep-in shift?
If staff work a shift from home or are residential care workers and they are permitted to sleep whilst on their shift, the Supreme Court (SC) in the case of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad have held that these workers are only entitled to (NMW) for time spent actually performing some specific activity related to their role and thus not paid (NMW) when they are a sleep or simply awake.
Low Pay Commission
In arriving at its decision, the (SC) relied on the reports of the Low Pay Commission (LPC) and the wording within regulations 30 and 32 of the National Minimum Wage Regulations 2015 (“the 2015 regulations”).
Regulation 30 deals with the meaning of time work and regulation and 32 with the rules governing the situation where the worker is available for work.
The above ruling related to home workers and residential care workers on sleep in shifts, but it could have wider implications where a worker works at employers’ premises and is able to sleep, could those sleep hours now not count for the purposes of working time for (NMW) pay?
Each case will turn on its on facts and it would be important to check job descriptions of those working sleep-in shifts to determine what a worker is required to do as having a short nap but expected to be awake for most of the shift may entitle payment to cover (NMW).
Allowance
Also, the (SC) appeared to have approved the practice of employers paying a sleep-in shift allowance when a worker is on a sleep-in shift as per what LPC in its First Report stated that “sleep-in workers should receive an allowance and not the NMW unless they were awake for the purposes of working..”, but according to current Government guidance, where the worker is actually working during this shift then the additional shift allowance paid would be outside the calculation to determine (NMW) if the payment is perceived as extra pay for working unsociable hours on that shift-see (1).
Please note that the above decision only relates to work in the context of (NMW) issues and not “work” within the meaning of the Working Time Regulations and uncertainty arises if a worker remains awake knowing he / she may be disturbed at any time during that sleep-in shift is working within Working Time Regulations.
The article is intended for general information purposes and should you require further assistance and guidance, please to do hesitate to contact our HR/Legal Advisory team on 01455 852028.
