The Supreme Court has confirmed in the cases of Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad and another (T/A Clifton House Residential Home) [2021] UKSC 8 that care workers who were expected to sleep at their workplace and to be available during the night were not entitled to the national minimum wage (NMW) for their period of sleep.
The National Minimum Wage Regulations 2015 confirm that workers must be paid the NMW when working. However the Supreme Court found that they were not “working” (defined by regulation 30) but were instead “available for work” (defined by regulation 32). As such they were only entitled to the NMW for hours during which they were awake for the purposes of working.
The Supreme Court made clear that for a worker to be “awake for the purposes of working” they must have some duties to perform.
The employees had argued that being present on a sleep-in shift discharged their employer’s statutory obligation to have an adult present. However, nothing in the Regulations indicated that an employee had to be paid the NMW during such a period. The Supreme Court also didn’t consider that keeping a “listening ear” out (in order to then rise to assist residents) meant that the period counted as working time.
This decision has now set aside the previous ruling of the Court of Appeal in British Nursing Association v Inland Revenue [2002] EWCA Civ 494, which had previously held that nurses providing a telephone night service from home were doing actual work throughout the whole shift (rather than being “available for work” between calls).
This decision is good news for employers who may ask employees to stay overnight at a place other than the employee’s home – as there is no obligation to pay at least the NMW for such a period unless the employee is actually “working” rather than being “available to work”.
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