Is ‘sleep-in-shift time’ work?

Of interest to those who employ staff who must sleep whilst at work between shifts, the recent Supreme Court decision in Royal Mencap Society v Tomlinson-Blake found that sleeping is not ‘work’ and therefore cannot does not qualify for payment at national minimum wage.

By way of background, the claim was brought by Mrs Tomlinson-Blake, a care support worker who provided care to two vulnerable adults, such care being given at their home. Where she was required to work at night, Mrs Tomlinson-Blake was allowed to sleep but had to remain at the location of her work. For each night shift, an allowance was paid, in addition to an hour’s pay at the NMW rate. SMrs Tomlinson-Blake brought proceedings to recover arrears of wages on the basis that she believed she was entitled to be paid the NMW for each hour of her sleep-in shift.

Both the employment tribunal and then on appeal the employment appeal tribunal found for Mrs Tomlinson-Blake, ruling that she was both available for work and actually working throughout her shift, even when asleep. They both suggested that each hour of her sleep-in shift had to be included in the NMW calculation.

This was dismissed by the Supreme Court and overturns the previous long-held case of British Nursing v HMRC which suggested that sleep-in shifts could qualify for the national minimum wage. The main reason for this is that essentially you must be "awake for the purposes of working" for the definition of “time-work” to apply.

That said, it should be noted that Tomlinson-Blake cannot be regarded as binding case law on whether similar legal arguments on different facts could be decided differently.

Posted on 1 April, 2021 by Ortolan

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