Can you sleep and earn at work?

Blog Posted: Friday 19th March 2021 by

In a case that has been ongoing over a few years now, the question that judges had to consider was, Is a ‘sleep in’ considered being included in your shift time work for the National Minimum Wage Regulations?

The simple answer that the judges gave was no, neither can they can count it as work in any other way according to the official regulations, the UK Supreme Court ruled this week in the Royal Mencap Society v Tomlinson-Blake case.

This case, which was heard during February 2020, but because of Covid-19, the judgement was only released this week, puts to bed a long-held understanding by most that sleep-in shifts could qualify for the national minimum wage following the British Nursing v HMRC case from 2002. The believe was that a worker could be counted as working even if they were not required to be awake during the shift, usually of a night time, but just simply to be available for work if a need arose. With most sleep in shifts, that would be for personal care for vulnerable people.

The Supreme Court however, made the following findings during their considerations: 

  1. For deciding whether a person is ‘working’ under the Minimum Wage provisions, it does not matter that a worker is at their employer’s direction or required to follow instructions;
  2. The Low Pay Commission had not intended that anyone who could sleep could be deemed to be ‘working’ or engaged in ‘time work’ when they first reported to government prior to the 1999 version of the regulations;
  3. In the definition of ‘time work’ the phrase “awake for the purposes of working” is composite and cannot be broken up into ‘awake’ and ‘for the purposes of working’. Any time not asleep cannot therefore be ‘time work’;
  4. The multi-factor test set out in the EAT to determine whether someone was ‘working’ simply by being present before deciding whether they were engaged in ‘time work’, is not required under the National Minimum Wage Regulations;
  5. If a worker is actually called on to respond to someone’s care needs (or any other duties) when on a shift, that time will however count as ‘time work’ and be subject to the National Minimum Wage.

All the judges combined decided that British Nursing v HMRC should not be followed any longer as it was not a correct statement of the law for sleep in shifts. However, the Court was divided on why that was, due to this, the Tomlinson-Blake ruling won’t be regarded as binding case law on whether similar legal arguments on different facts to those in British Nursing could be raised again regarding the home-working exception in the Regulations. Because of this we suspect that we have not heard the last of this case with more legal ramifications to come over time and a test of interpretations of the ruling. This is a case of where advice prior to deciding from legal experts is imperative. 

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