Supreme Court rules that 'sleep time' is not working time for National Minimum Wage purposes

The Supreme Court has today issued its long awaited judgement in the case of Royal Mencap Society v Tomlinson-Blake. Today’s decision provides a position in respect of ‘sleep-in shifts’ and the question of whether or not the time a worker is required to sleep on site or nearby would constitute working time for the purposes of national minimum wage calculations.

The Supreme Court has held that it does not, under the National Minimum Wage Regulations 1999 and 2015. The decision extinguishes the belief that sleep-in shifts could qualify for the national minimum wage following the decision of British Nursing v HMRC. In that case it was held that a worker could be ‘working’ even if not required to be awake (or simply be available for work) if a need arose. With most sleep-in shifts, that would be for personal care for vulnerable people.

All the judges giving a judgment in today’s case 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 disagreed on the reasons for this, and so today’s decision cannot be regarded as the hoped-for unequivocal clarity and binding case law in this area.

Whether legal arguments, on different facts, could be raised and succeed in respect of sleepovers and the National Minimum Wage Regulations, is possible. That said, this is a strong indication that the Supreme Court, from which there is no appeal, will not be easily persuaded that in any circumstances “sleeping” should count as “working”.

Get in touch – we’re here to help

We can help with this. Our team of specialist employment solicitors can review contracts and working practices if you wish to consider this judgment’s application to your own practices; this is not necessarily solely from a compliance perspective, e.g. to ensure your pay practices are correct, but also to review your remuneration arrangements if you have provisional arrangements in place for sleepover payments, or if sleepover payments are to be considered as part of broader remuneration reviews or negotiations.  We can provide specialist legal advice, providing technically sound advice with a solution driven focus.

Please get in touch and we would be delighted to assist you.

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