It’s All About Time

Category: Employment

It is quite common for workers to be provided with somewhere to sleep on shift and only be required to be awake for work when they are called upon.  The question of whether a worker is working for the purpose of minimum wage whilst they are sleeping during sleep-in shifts has vexed the courts and employers for many years.

The Court of Appeal has provided some welcome clarity in the recent case of Royal Mencap Society vs Tomlinson-Blake, where Lord Justice Underhill, giving the leading Judgment found that people sleeping on shift are available for work, rather than actually working.  This means that only time when a worker is required to be awake for the purposes of working will count for the purposes of national minimum wage.

This Judgment will be of great relief to employers, especially in the care industry, where a finding that time sleeping did attract the minimum wage had the potential to lead to £400million of back pay claims.

We think that this is a sensible decision which reflects the original intention of the National Minimum Wage legislation.

It is very likely that Unison will appeal this decision, so we still have a way to go until a final answer to the question of whether workers should be paid to sleep.