Whether or not a worker who is on call at their employer's premises but who is allowed to sleep when their services are not required is entitled to be paid the National Minimum Wage (NMW) for the entirety of their shift has been the subject of dispute in many Employment Tribunal cases and is of particular significance to the care sector, in which so-called 'sleep-in' shifts are common. A failure to pay the NMW when required can lead to penalties and even criminal sanctions against employers. There is, therefore, a pressing need for certainty in the law.
Each case is determined on its own merits, but hitherto a distinction has been drawn between those where an employee is working merely by being present at an employer's premises, whether or not provided with sleeping accommodation, and those where an employee is provided with sleeping accommodation and is simply on call.
The test applied has been a multifactorial one requiring an assessment of relevant factors, including an employer's purpose in engaging a particular worker, restrictions on a worker's personal activities during hours spent on call, the degree of responsibility undertaken and the immediacy of the requirement to provide services.
More recent cases have found in favour of the claimants and the Government's guidance on calculating the NMW was amended accordingly.
In a guideline ruling, the Court of Appeal recently found that on a straightforward reading of the National Minimum Wage Regulations 1999, two care workers who were expected to sleep for all or most of their shifts and were provided with suitable facilities were entitled to be paid the National Minimum Wage (NMW) for time when they were required to be awake for the purpose of performing some particular task, but not for time when they were asleep (Royal Mencap Society v Tomlinson-Blake and Shannon v Jaikishan and Another).
This ruling conflicts with many previous decisions that sleep-in workers were entitled to be paid the NMW for the entirety of the time they were available to work, whether they were actually working or not. However, Lord Justice Underhill said, "It would not be a natural use of language, in a context which distinguishes between (actually) working and being available for work, to describe someone as 'working' when they are positively expected to be asleep throughout all or most of the relevant period."
Clearly, the position is different where a worker is expected to work for all of their shift but is permitted to sleep for a short period when not busy, and each case will be decided based on the individual circumstances.
The decision has been hailed as a victory for common sense and one that provides a lifeline to the care industry, which hitherto faced higher wage bills and back-dated pay claims. However, the Supreme Court has granted permission for the decision to be appealed.
The Government's guidance on calculating the NMW has been updated to reflect the Court of Appeal's judgment. This emphasises that employers must comply with the law as it currently stands, with any judgment of the Supreme Court unlikely to be handed down before 2019, and possibly not until 2020.