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 question is likely to be appealed to the Supreme Court.
The Government’s guidance on calculating the NMW has now 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. The guidance can be found at
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