Sleep in worker pay

Employment Law

In Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad (t/a Clifton House Residential Home) [2018] EWCA Civ 1641 the Court of Appeal held that workers on sleep-in shifts were only entitled to the national minimum wage in respect of hours in which they were required to be awake for the purposes of working, not for the whole shift.

The cases concerned two care workers (Mrs Tomlinson-Blake and Mr Shannon) who were contractually obliged to spend the night at, or near, their workplaces and were expected to sleep for most of the period but could be woken if their assistance was required. The care workers were paid a fixed sum for the sleepover shift; Mrs Tomlinson-Blake was paid additional sums if called on during the night for more than an hour, and Mr Shannon received free accommodation all year round in addition to the fixed sum. The workers argued that they were being underpaid under the NMWR 1999 and NMWR 2015 on the basis that the whole sleep-in shift constituted time work or salaried hours work.

In Tomlinson-Blake v Royal Mencap [2017] ICR 186, the EAT upheld an employment tribunal’s finding that the worker was performing time work throughout her shift . In Shannon v Rampersad [2015] IRLR 982 the EAT found in favour of the employer. Appeals to the Court of Appeal in both cases were heard together.

The Court of Appeal (Underhill J, with whom Singh LJ and Ryder LJ agreed) allowed the employer’s appeal in Tomlinson-Blake v Royal Mencap and dismissed the worker’s appeal in Shannon v Rampersad. The workers in both cases were to be treated as available for work during their sleep-in shift, rather than actually working. The result was that only those hours during which they were required to be awake for the purpose of working counted for NMW purposes.