The Court of Appeal has held that care workers who sleep-in, are not entitled to the national minimum wage under the National Minimum Wage Act 2015 (NMWR 2015) for the time during which they are asleep. This is very good news for the care home sector who would have then been facing claims of several hundreds of millions of pounds in penalties and back pay from staff, which would mean some organisations could face bankruptcy.
It is very common in the care sector for workers to agree to sleep-in overnight at premises where elderly, disabled or otherwise vulnerable people live, on the basis that they can be called on if assistance is required in the night. Whether these individuals are remunerated for the time that they are sleeping has been a long contested issue.
Section 1 of the NMWR 2015 creates the basic right for a worker to be paid the national minimum wage for any time worked. Under the NMWR 2015 a worker who is not actually working may be treated as working if they are available (and are required to be available) at or near a place of work for the purpose of doing such work, with two exceptions:
- Where the worker’s home is at or near the place of work, time the worker is entitled to spend at home is not treated as working time.
- Where the worker sleeps by arrangement at or near a place of work and is provided with suitable facilities for sleeping, time during the hours they are permitted to use those facilities for the purpose of sleeping shall only be treated as working time when the worker is awake for the purpose of working.
Recently the cases of Royal Mencap Society v Claire Tomlinson-Blake and John Shannon v Rampersad t/a Clifton House Residential Home have gone through the Court of Appeal to determine if Mr Shannon and Ms Tomlinson-Blake were entitled to be remunerated for the time which they were asleep. Both workers were contractually obliged to spend the night at, or near, their workplaces and were expected to sleep for most of the period but could be woken if their assistance was required.
In a unanimous decision in both cases the Court of Appeal found in line with regulation 15(1) and has overturned existing case law. The Court found that the time that counts for National Minimum Wage purposes is limited to a time where the worker is required to be awake for the purpose of working. Lord Justice Underhill in the case of Mr Shannon commented that:
“… it is impossible on any common-sense approach to describe the Claimant as actually working except when he was called on to assist the night care worker”.
This decision has been limited to workers who sleep at residential care homes or similar places of work whilst “on call” for emergencies and does not encompass other types of worker who may sleep during their shifts, such as security guards. The sleeping facilities provided are also taken into consideration, as seen in the case of Scottbridge Construction Ltd v Wright, where a night watchman was only provided with a mattress in the office and this was deemed to be a relevant factor in counting the whole period as time worked.
The Working Time Regulations
Another important limitation is that the NMWR 2015 are different to the Working Time Regulations. Therefore a care worker may not be entitled to the national minimum wage during the period they are asleep, but may be working for the purposes of the Working Time Regulations and therefore could be entitled to rest breaks and subject to the weekly maximum of an average 48 hour week. The Court of Appeal cases have left this open and we suspect that this may be challenged in the future.
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