Mencap: national minimum wage battle put to bed
In February 2020, the Supreme Court heard the conjoined appeals of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad which concern workers in the care sector who work night shifts and are permitted by their employers to sleep during those shifts, known as ‘sleep-in shifts’.
The question for the Supreme Court was whether the claimants (and consequently others working sleep-in shifts as this case had wide-reaching knock on effects) are entitled to the national minimum wage (NMW) for each hour of a sleep-in shift, regardless of whether they are in fact asleep for those hours.
Sleep-in shifts are prevalent in the care sector due to the need for workers to be on hand round the clock to provide care but this decision concerns any organisation which offers sleep-in shifts and any workers who work them.
Fortunately for the sector, the NMW does not need to be paid for time spent asleep on a shift even though the individual is on call or available to work.
National minimum wage: the law
An employer who fails to pay the NMW to workers who are entitled to receive it will be liable to pay arrears and may also be subject to financial and criminal penalties. The rate increased at the beginning of April 2021.
The NMW regulations provide that where a worker is permitted to sleep during a shift, the NMW will only apply to time the worker spends awake for the purposes of working.
What did the Supreme Court decide?
The Supreme Court dismissed the workers’ appeals, deciding that the NMW does not apply to time when a sleep-in shift worker is asleep or awake but not for the purposes of working (read the judgment).
Much weight was given by the Supreme Court to the recommendation of the Low Pay Commission (LPC) in 1998 that sleep-in workers should receive an allowance but not the NMW unless they are awake and required to be available for work. However, this may lead to confusion as there is no law that says employers must pay an allowance for sleep-in shifts.
The effect of this decision is that sleep-in shift workers are only entitled to the NMW for those hours spent awake and working. It is not enough to simply be awake. If the worker is awake during the shift for their own purposes, they are not entitled to the NMW for this time. If they are called on or required to perform certain duties during the shift, they should be paid the NMW for that time. It does not matter how many times a worker is called on during a sleep-in shift, it will not change the fact that the sleep-in shift as a whole is not subject to the NMW as the expectation is that the worker will be asleep.
The decision will have come as a relief to many organisations who would have faced hefty and possibly fatal back payments of NMW to their sleep-in shift workers if the appeals were successful. However, there are undoubtedly sleep-in shift workers who are disappointed by the outcome of this case and possibly also disincentivised from working vital sleep-in shifts. In fact, since the Supreme Court’s decision, Mencap has written to the government asking for an investigation and change to the current rules relating to sleep-in shifts. It remains to be seen whether there will be reform in this area of the law.