By Amy Harvey
In Royal Mencap Society v Mrs C Tomlinson-Blake: UKEAT/0290/16/DM, the Court of Appeal held that, when calculating an employer’s obligations under the National Minimum Wage Regulations, the only time that counts in respect of sleep – in workers is the time they are required to be awake for the purpose of working.
In this case, a care worker supporting vulnerable adults worked a sleep-in shift from 10pm until 7am during which no specific tasks were allocated, but there was a continuing obligation to remain at her post and keep an ear out in case she was needed to deal with any incidents. She was paid a total of £29.05 for this shift, made up of a flat rate of £22.35 and one hour's pay. The EAT upheld an employment tribunal's finding that the carer was performing time work throughout her shift, and was entitled to be paid the minimum wage for the hours spent sleeping. The Court of Appeal has overturned that decision, holding that sleepers-in are to be characterised as available for work, rather than actually working, and that time spent sleeping at their place of work does not count towards the NMW calculation. This decision has come as a relief for employers of sleepers – in, who, following the EAT decision, faced substantial National Minimum Wage claims from their employees.
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