Sleep-ins and the National Minimum Wage
The ruling on Friday from the Court of Appeal adds another twist in the tale of Sleep-ins and the National Minimum Wage.
The judgement, from the case of Royal Mencap Society -v- Claire Tomlinson Blake, can be found here.
What had been decided at the Employment Appeal Tribunal (a lower court to the Court of Appeal) was that when care workers (or others) who were required by their employer to be at their place of work, “on-call” but were allowed to be asleep could be entitled to the national minimum wage for all of their time at work – whether asleep or not.
The EAT had prescribed a rather complicated multi-factorial test for how these matters should be looked at on a case by case basis. In essence this balanced whether the employer was subject to regulatory or contractual requirements to have someone on the premises, whether the worker would be subject to disciplinary action if they left site, whether the worker was on the premises for the purposes of taking on a particular responsibility with a higher level of responsibility being indicative of this being working time, and whether there was an immediacy to their presence or whether they could be considered as supernumerary.
The overall implication of the ruling was that each worker who was on a sleep-in could claim that they were engaging in working time under the National Minimum Wage regulations and therefore was entitled to pay for each hour worked.
The Court of Appeal decision clarifies this matter and sets out that the EAT’s multi-factorial approach had attempted to simplify existing case law which the Court of Appeal now considered had actually been incorrectly decided in any event. In essence – two wrongs still making a wrong.
The upshot at the moment is that the national minimum wage does not apply to sleep-ins unless the worker is awake for the purposes of working. The Court of Appeal made a distinction between being “available for work” i.e. at your place of work asleep, rather than “actually working”. The only time which counts for the purposes of calculating the national minimum wage is that time which the worker is required to be awake for the purpose of working. A flat rate can be paid for a sleep in shift but employers will need to make sure that the national minimum wage is still paid for those hours an employee is awake and working or the hours payable in accordance with their contractual terms.
This might not be the end of this saga, but this is currently the position as it stands. Healthcare providers should seek advice on this matter as soon as possible as to be frank – the rules are still blindingly complex.