March 23, 2021

New Ruling from the Supreme Court on ‘Sleep-in’ Payments: Explained

The Supreme Court has issued its long overdue judgement regarding ‘sleep-in’ payments in the key case of Mencap v Blake-Tomlinson.

Only periods of time when the employee is awake and carrying out relevant duties count for the purposes of the National Minimum Wage, it says.

Back in 2017, the then President of the Employment Appeal Tribunal (EAT), the Honourable Mrs Justice Simler, handed out an EAT judgement which sent shock waves particularly – but not exclusively – through the care sector.

She ruled that, even when someone is asleep, they can be working simply by being present at the workplace. She said, “an individual can be working simply by being present, even if they have little or nothing to do during certain hours.”

She did, however, qualify this. She contrasted a carer required to remain on the premises “on pain of discipline should they slip away to do something else” with a pub landlord sleeping at the premises simply to “be able to call out the emergency services in case of a break-in or fire”. Only the former would be considered to be working even when asleep in her judgement.

Being Awake ‘for the Purpose of Working’

The Court of Appeal reversed this approach and the Supreme Court has now endorsed their decision. In its judgement it has made clear that the key question to be answered is not whether the individual is ‘working’ but whether they are working ‘for the purposes of the National Minimum Wage’. Sleeping on the premises only qualifies for the National Minimum Wage when the individual is specifically “awake for the purpose of working”.

The Supreme Court judgement explicitly identifies that the statutory question it considered revolves solely around hours to be determined for National Minimum Wage purposes. It has not considered other circumstances. Hence, for instance, it did not address the possible impact of the Working Time Regulations in terms of hours of work or rest provisions.

It did, however, determine that its judgement effectively overrules some earlier key precedent cases – in particular British Nursing Association v Inland Revenue. This was a case where nursing agency staff would answer calls from their office during the day and their home at night. Although the frequency of being awake appears to be more pronounced than in the ‘Mencap’ case, it ruled that it is no longer sustainable as a precedent. In the usual judicial way of things, however, their honours have made clear that every case turns on its individual facts!

And, perhaps in amplification of this, they make clear that there are many kinds of work which can be, and are, performed from home and in which tasks only come up intermittently. They even reference the current pandemic in this respect.

The key consideration, in their view, is that the person is performing time work in the periods between those tasks. The same considerations would potentially apply whether such work takes place in the workplace or at home. By inference, the individual must be ‘working for the purpose of the National Minimum Wage’ even if, between tasks, they can make a cup of tea or even take a nap.

And they also go on to say that although this judgement has revolved around the issue of ‘time work’ the circumstances may be equally applicable to work measured in other ways. In particular, they reference salaried hours work and unmeasured work.

Hence, although the Supreme Court judgement usefully clarifies that the individual must be ‘awake for the purpose of working’ to qualify for the National Minimum Wage, there are other questions that may be relevant but which the judgement does not seek to address.

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About the author

Mike Fitzsimmons

About the author

Mike Fitzsimmons

Mike is a Senior HR Consultant within the Moorepay Policy Team. He is responsible for the developing of employment documentation and is an Employment law advisor. With over 30 years of senior management and HR experience, Mike has managed teams of between 30 and 100 employees and is familiar with all the issues that employing people brings. He has also served as a non-executive director on the Boards of several social enterprises and undertook a five year tour of duty as Executive Chair of a £30+ million annual turnover Government agency.

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