Whether time spent by a worker sleeping on shift counts as working time for the purposes of calculating whether they have been paid at least the National Minimum Wage (NMW) has been a huge problem in the past year or so, particularly in the Care sector.

Back in April 2017, the Employment Appeal Tribunal (EAT) decided in the case of Royal Mencap Society v Tomlinson-Blake (and others) that, in some circumstances, even when a worker is asleep they might still be working for the purposes of calculating whether they have been paid the NMW. The big issue was that previous long-standing guidance from HMRC stated that such time did not count as “work”.

Underpayments of NMW

Following the EAT decision, HMRC suspended any enforcement action for a short period. In November 2017, HMRC launched the Social Care Compliance Scheme. This gave employers in this sector an opportunity to avoid further penalties by self-reviewing any underpayments of NMW with advice from HMRC.

Royal Mencap appealed to the Court of Appeal who have overturned the EAT’s decision. The decisive point relied on by the Court was the fact that when the National Minimum Wage Act came into force, the Low Pay Commission prepared a report and recommendations which suggested that time spent sleeping on shift would not count as work for these purposes. When the Act and subsequent regulations came into force, Parliament did not say that they were deviating from this.

Court of Appeal decision

Therefore, the Court stated:

• where a worker is contractually obliged to spend the night at or near their workplace on the basis that they are expected to sleep for all or most of the period but may be woken if required to undertake some specific activity;
• the only time that counts for NMW purposes is the time when the worker is required to be awake for the purposes of working.

This may not be the end of the matter, though. A few hours after the decision was given, UNISON indicated that they are considering appealing to the Supreme Court. For the time being, it will be the Court of Appeal’s decision that should be followed.

If you have any questions regarding this decision, please contact your Ellis Whittam adviser who will be able to assist.