Landmark ruling handed down from the Court of Appeal on whether night shift workers who are required to 'sleep in' at work are entitled to be paid the national minimum wage (NMW) for the whole of their shift, including time spent sleeping.

The Court of Appeal (CA) has today overturned the Employment Appeal Tribunal (EAT) decision that workers are entitled to be paid the national minimum wage whilst sleeping.

In Royal Mencap Society v Tomlinson-Blake (along with other joined cases), the CA has said that only time spent awake and working should be included in the calculation of NMW payments.  This is because this time falls into an exclusion in Regulation 32 of the National Minimum Wage Regulations 2015, which specifies that the NMW is only payable during hours when the worker is awake for the purpose of working, even if facilities for sleeping are provided by the employer.

As we reported in the April 2017 edition of Employment Eye, the EAT looked at how employment tribunals should approach the question of whether employees who are sleeping for much of their shift are entitled to be paid the NMW for the full shift; or, whether they are entitled to the NMW only when they are awake and carrying out relevant duties.

The EAT said that a 'multifactorial' test must be applied in these circumstances, which depended on factors such as the contractual position between the parties, the nature of the tasks required, and the degree of responsibility. However, the Court of Appeal has now overturned that decision, in today's ruling.

The CA's decision will be widely welcomed by employers in the care sector, as well as all other sectors which utilise night shift workers who are required to sleep on-site. Whilst this decision will be disappointing for individual workers, this landmark ruling will go some way to safeguarding the ongoing support for vulnerable people and the sustainability of this sector. It has been reported that there is an estimated £400million in potentially unpaid NMW payments within the care sector alone, which under this judgment, are no longer considered to be payable.

The latest position is subject to any further appeal to the Supreme Court.


If you would like to discuss this topic, or any other aspect of Employment Law, please contact Jodie Sinclair, head of Bevan Brittan's Employment Pensions and Immigration team

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