No payment for sleeping employees
The Court of Appeal has ruled that carers who sleep at a client’s home are not entitled to receive the national minimum wage despite being technically “on call” during this time.
There has been extensive case law which previously held that, where a worker is required to be at a place of work, but not actually working, they are entitled to payment in line with the national minimum wage. This has resulted in workers effectively being paid to sleep if they are required to be at specific location in anticipation of the requirement to work.
The Court of Appeal has now held that the previous authorities on this topic had been incorrectly decided. In the case of MenCap v Tomlinson-Blake, Ms Tomlinson-Blake brought a claim for payment at the rate of the national minimum wage for the time she spent when sleeping-in. She was paid a flat-rate for sleeping-in, in addition to one hour’s pay. If she was required to wake and work for any longer than an hour she would be remunerated accordingly.
The Court of Appeal held that the correct decision is that workers “sleeping-in” will only be entitled to have sleep-in hours counted for minimum wage purposes where they are, and are required to be, awake for the purpose of performing some specific activity. It was concluded that as workers who sleep-in are characterised by the regulations as being available for work, rather than actually working.
The result being that the only time that counts for national minimum wage purposes is the time when the worker is required to be awake to actually work, not just to be available for work. This decision may be distinguishable from workers who are required to be available for work but are not required to stay at a particular location or those who have accommodation at work and are required to be on call outside normal working hours. These types of workers were not fully considered by the Court of Appeal however if these situations apply to you then you should be mindful of the decision in Mencap v Tomlinson-Blake in relation to payments for being available for work.
If you have any questions relating to this article or require any advice, please contact Laura Tennet, Solicitor in the Employment team, on 0191 226 3296 or at laura.tennet@sintons.co.uk.
