On Friday the Supreme Court handed down its long awaited decision in the case of Royal Mencap Society v Tomlinson-Blake. The case revolved around whether ‘sleep-in’ shift work in the care sector counted as working time for the purposes of the National Minimum Wage (NWM) Regulations, and thus entitled care workers to receive the NMW during the time they were asleep.
The Supreme Court determined that where care workers are required to sleep at, or near, their workplace, and be available to be called on during the night, they are not entitled to the NMW for the whole shift. Instead, a worker will only be entitled to the NMW where they are required to respond to an individual’s needs (or to perform other duties). This decision now nullifies previous case law which held that workers could be considered to be ‘working’ when they are asleep.
Although each case must be decided on its specific facts, the Mencap decision finally provides certainty on the much debated issue and will provide comfort for employers in the care sector who may otherwise have been faced with significant liabilities for pay during the entirety of sleep-in shifts.
The employment team has significant experience in advising clients in the care sector, assisting on this and many other issues, most recently on whether employers in the care sector can make employee Covid vaccinations mandatory.