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SLEEPING ON THE JOB AND THE NATIONAL MINIMUM WAGE

11/09/2018

Are employees entitled to the National Minimum Wage when they sleep during all or part of their shift/ job? The recent case of Mencap v Tomlinson-Blake has provided some clarification from the Court of Appeal.

The Claimant undertook a job role in which she supported vulnerable adults living in their own home. In addition to working daytime shifts, she was required to carry out a "sleep-in" shift. During the sleep-in shifts, no specific tasks were allocated but she was required to remain at the client's house throughout the shift and provide any support that was needed. For a sleep-in shift, she received a fixed payment, not the NMW.

The Claimant said she should be entitled to the NMW for the whole of a sleep-in shift. If correct, she would be due much more money.

The Courts Decision

The Tribunal and Employment Appeal Tribunal (EAT) both decided that TB was working for the whole of a sleep-in shift and entitled to the NMW. The organisation appealed against the EAT's ruling to the Court of Appeal.

The Court held that they should have concluded that the Claimant was "available for work" during a sleep-in shift, rather than working because she slept by arrangement at her place of work and was provided with suitable facilities for doing so, i.e. her own bed and bedroom.

In this situation the sleep-in exception in the National Minimum Wage Regulations applied. Regulation 32 of the of the Regulations  says that the minimum wage only needs to be paid during hours when the employee is awake for the purposes of working and the worker should only receive the NMW/NLW for the hours they're required to be awake.

Warning

This ruling doesn't mean that any worker who has the opportunity to sleep whilst at work can be denied the NMW/NLW during their shift. It will all depend on what they are required to do.

In care worker cases, the workers are expected to sleep even though they may be disturbed. This was an important part of the judge's reasoning. There are other cases where this will not be the case. For example, a night watchman may be allowed to sleep at times but is expected to perform duties throughout the shift. They will be entitled to the minimum wage for the whole of their shift. Each case will be decided on its facts, but this case is helpful for employers in providing some clarity.

Fiona Haworth. You can contact Fiona on fiona@practical-hr.co.uk

If you have any queries about when the NMW is or is not to be paid, please call Practical HR on 01702 216573 or email Fiona on the above.


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