19 March 2021

Supreme Court ruling on NMW and sleep-in shifts

As expected the Supreme Court has agreed with the earlier Court of Appeal decision in Royal Mencap Society v Tomlinson-Blake & Shannon v Rampersad & another and confirmed that sleep-in shifts do not constitute ‘working time’ for national minimum wage purposes. 

Lady Arden summarised the decision by setting out that “if the employer has given the worker the hours in question as time to sleep and the only requirement on the worker is to respond to emergency calls, the worker’s time in those hours is not included in the NMW calculation for time work unless the worker actually answers an emergency call.  In that event the time he spends answering the call is included. …. It follows that, however many times the sleep-in worker is (contrary to expectation) woken to answer emergency calls, the whole of his shift is not included for NMW purposes.  Only the period for which he is actually awake for the purposes of working is included.

This decision will come as a relief to many care providers for whom back pay claims would have been ruinous had the Court of Appeal decision been reversed.  In response to the judgment Mencap set out that they and many other care providers already pay sleep-in shifts at the higher rate and intend to continue doing so regardless of today’s decision, and called on the Government to legislate for this higher level of pay and provide funding to employers to meet this obligation.

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