The Supreme Court has handed down its decision today (19th March 2021) in Royal Mencap Society v Tomlinson-Blake and another case. In its judgment the court recognised the importance of carers and wardens who help to look after those who through age or infirmity cannot look after themselves. Carers are among those who work sleep-in shifts when they have to be at or near their job but can sleep for some or all of that time. These ‘sleep-in workers’ are often among the lowest paid, which is why the question at the heart of this case was so important – should National Minimum Wage (NMW) be paid for each hour of a sleep-in shift?
The court has held that where a worker is required to sleep at, or near, their workplace, and be available to respond to emergency calls, the sleep-in hours do not have to be included in the NMW calculation unless the worker actually answers an emergency call. It does not matter how many times a sleep-in worker is woken to answer emergency calls during a sleep in shift, NMW only has to be paid for the period during which they are actually awake and working.
It is fine therefore for workers to be paid an allowance that is lower than the NMW hourly rate for their sleep-in shift. If they have to work by responding to an emergency call then they must be paid NMW for that period. Their entitlement to the NMW is when they are working and not just available to work.
