In a landmark case for the care sector, the Supreme Court has ruled that workers who ‘sleep-in’ as part of their shift are not entitled to have sleeping hours counted for the purposes of the National Minimum Wage but only those spent awake for the purposes of working.

A healthcare and social care employment specialist for national law firm Bevan Brittan, says whilst the decision is likely to be welcomed by employers in a sector which is already financially challenged, the decision could create difficulties in recruiting people into social care.

In accordance with National Working Time Regulations, a worker who is required to be available for the purposes of working and at or near their place of work is entitled to NMW unless they are at home or the arrangement is that they will sleep (with appropriate facilities to do so), in which case only hours will count when they are awake for the purposes of working.

The decision is the culmination of two long-running cases, Tomlinson-Blake v Royal Mencap Society and Rampersad v Shannon. The Court of Appeal had determined that Tomlinson-Blake and Shannon were not entitled to National Minimum Wage for the whole sleep-in shift, but only the time when they were required to be awake for the purposes of working. Today the Supreme Court rejected the appeal to overturn that decision.

“The Supreme Court has now brought to an end this long running issue of whether staff can receive the National Minimum Wage whilst asleep on duty – even where they are woken on numerous occasions during the night,” said Jodie Sinclair, Partner from Bevan Brittan.

Jodie Sinclair adds: “This will be a welcome decision by most employers, especially given that many in the sector have been seeking additional financial support already via the Infection Control Fund during Covid. As this financial support is ending at the end of the month, many operators would have been faced with an increasing financial burden had the appeal been granted.”

“Understandably this decision will come as a great disappointment to many social care staff across the sector who have been working incredibly hard, particularly during the pandemic. Many will already be feeling that they are not properly paid for the work that they do,” added Jodie Sinclair.

“The Supreme Court decision may impact on the ability to attract and retain staff in the sector which would compound an existing significant skills gap. However, given the ongoing uncertainty regarding the long-term funding of the care sector, this decision will not solve many of the wider financial challenges facing the sector. Care providers should review their contractual arrangements with staff, who may already be paid for every hour of a sleep in, where the Courts have found that this is not a requirement,” says Ms Sinclair.

Bevan Brittan’s experience advising social care employers nationwide is unrivalled. Its social care team advises on the full range of legal areas including employment law, corporate, property, regulatory, due diligence and commissioning and procurement.

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