In March 2021 care operators across the UK breathed a sigh of relief when the Supreme Court ruled that workers who sleep-in are not entitled to the National Minimum Wage in the landmark Mencap case.
The Supreme Court has confirmed that workers on sleep-in shifts are only entitled to the National Minimum Wage for the hours they are awake for the purposes of working.
This is great news for organisations in the care sector after years of uncertainty and court appeals.
The Mencap case
This case began when Mrs Tomlinson-Blake argued that she should receive National Minimum Wage for each hour of her sleep-in shift rather than her flat rate of approximately £29 per night.
Her shifts for Mencap were in a service user’s home, where she was required to keep an ear out for emergencies during the night. She was free to use her time there as she wished but could not leave the premises.
Mrs Tomlinson-Blake won her original employment tribunal claim, but since then the case has made its way through the courts all the way up to the Supreme Court this year.
The final decision is that workers on sleep-in shifts are only entitled to National Minimum Wage for the hours that they are awake for the purposes of working, not just awake generally.
If the only requirement is for the worker to respond to emergency calls – as was the case for Mrs Tomlinson-Blake – there is no entitlement to National Minimum Wage for the whole shift. Only the time spent responding to calls should be included for National Minimum Wage purposes.
This is a monumental case for the care industry. Had organisations been obligated to pay National Minimum Wage for the entirety of a sleep-in shift, they would have an increased cost going forwards and scope for back pay claims dating as far back as six years. This could have reportedly cost the industry £400 million.
What does this mean for you?
The Supreme Court’s decision is already in effect, so it’s important to fully understand the facts now to ensure that you are paying your employees the correct, legal amount.
- Sleep-in workers that are expected to sleep when there isn’t an emergency are not entitled to National Minimum Wage.
- But workers that are expected to be awake for most of their shift but can take the odd nap are likely to still be entitled to National Minimum Wage for the whole shift.
This clarification that a worker must be awake and ‘actually working’ to be entitled to National Minimum Wage will hopefully make your pay assessments much simpler.
It’s important to note that the ‘working time’ details of this Mencap case only relates to National Minimum Wage. The hours spent on sleep-in shifts will still be ‘working time’ for Working Time Regulations purposes, meaning that workers are:
- Required to work an average of/no more than 48 hours a week unless they opt-out
- Entitled to 5.6 weeks of paid time off a year
- Allowed 1 consecutive hour of rest every 24 hour period and a 20 minute break for working days longer than 6 hours
- Due 11 hours of rest between their working days
- Given a minimum of 1 day off every week
- Not permitted to work more than 8 hours in a 24 hour period
- Required to work fewer hours if they are aged 16-18
If your workers currently do sleep-in shifts we recommend that you review your arrangements to make sure they’re lawful.
If you already pay your sleep-in workers National Minimum Wage, we recommend that you keep doing so where possible. A quick change after this case won’t be popular with your staff or win you any good PR, and might even negatively impact your reputation.
The last thing you need is your workers resigning or any future difficulties hiring staff.
If you are considering making any changes we recommend speaking to our HR Consultants as this will require careful consideration.
Although the Supreme Court decision marks the end of the road for this particular case, the uncertainties might not be over yet. We understand that Unison – who backed Mrs Tomlinson-Blake – have said they will continue to push for a change in the law.
How we can help
And our HR Consultants are just a phone call away if you need any legal advice or help making decisions in the wake of this case. You can get in touch on 0333 014 3888 or through email at firstname.lastname@example.org.
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