30th September 2019

Sleeping on the Job: Should ‘sleep-in’ staff receive National Minimum Wage?

 

In 2018 the Court of Appeal held that ‘sleep-in’ care workers in residential accommodation are not entitled to the National Minimum Wage whilst asleep.

Case History

In 2016 two workers brought a claim against their employer Royal Mencap Society (Mencap) arguing that they should be paid National Minimum Wage rather than the flat rate of pay currently receiving when working a ‘sleep-in’ shift from 10pm to 7am. The workers were not allocated any specific tasks to complete whilst on their shifts, however they were expected to remain on the premises for the entire duration. The workers argued, however that even though they were asleep, they were required to keep their ‘listening ear’ whilst in bed and be ready to perform tasks if needed.

The Employment Tribunal first sided with the Claimant’s and accepted that although the majority of their shifts were spent asleep, they must be able to respond when required. Mencap then appealed to the Employment Appeals Tribunal, who again upheld the Claimants argument and agreed workers should receive back pay for their past six years of employment.

Mencap then appealed the Employment Appeals Tribunal’s decision to the Court of Appeal, which was heard in March 2018.

Court of Appeal Decision

The Court of Appeal overturned the previous decisions of the Employment Tribunal’s and held that employees should only be paid the minimum wage when they are awake and ‘actually working’. The Tribunal stated that ‘sleep in’ workers are ‘available’ for work rather than ‘actively working’. The decision has a significant impact on all employees who are allowed to sleep at work until they are required to perform a specific task.

Unison however have now been granted permission to appeal to the Supreme Court, where they will continue to argue ‘sleep-in’ care workers should be paid national minimum wage when they are asleep. The case is due to be listed before the end of 2019.

Implications

Although the current Court of Appeal judgement came as a relief for Mencap and other ‘sleep-in’ service providers, if the Supreme Court rules against Mencap, they will be ordered to pay large numbers of staff up to 6 years of back pay, potentially crippling them. It has been estimated; if they are ordered to repay employees, it has been estimated that the cost to the care industry will be around £400 million which could lead to a number of organisations going bankrupt.

Whilst the outcome is disappointing for current ‘sleep-in’ workers, the Court of Appeal decision has however provided protection for the vulnerable services users whose care would be jeopardised by the financial impact on service providers.

 

*All information is correct at the time of publishing

Kaine Davey

Napthens LLP - Employment Law Adviser

I am an Employment Law Adviser in the Employment and HR team at Napthens assisting on a wide range of employment matters.

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