Sleep-in Workers and the National Minimum Wage
Are residential care staff and other workers whose employers require them to sleep away from home entitled while doing so to the National Minimum Wage (currently £8.91 per hour for those aged 23 and over)?
0n the 19th March 2021 the Supreme Court ruled in Royal Mencap Society v. Tomlinson-Blake and in an associated appeal that they are not. Such staff are only eligible for the National Minimum Wage when actually ‘awake for the purposes of working’, whether that involves responding to emergencies or undertaking other work-related duties.
The Court’s decision, which is based on a strict interpretation of the National Minimum Wage Regulations, resolves a thorny issue with which employment tribunals and lower appellate courts have wrestled for many years. It means, in effect, that while asleep (or awake but not for the purposes of working) staff who are obliged to sleep-in will only be entitled to whatever allowance, if any, their contracts of employment provide.
The ruling will doubtless come as a relief to employers in the care sector but is likely to prove a considerable disappointment to staff who are expected to remain on-call throughout a sleep-in shift.
Before signing up to contracts of employment both parties will want the financial arrangements for sleeping-in to be clearly expressed: for their part employees should check the adequacy of any allowance or other remuneration while employers will wish to satisfy themselves that there is nothing in the written terms & conditions that might be read as entitling staff to normal remuneration while asleep though still on call.
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