‘Sleep-In’ Shifts: Supreme Court Dismisses Payment Appeal

Year Published: 2021

In a long-awaited judgement regarding the rules of paying workers for ‘sleep-in’ shifts, it has finally been determined that anyone working a sleep-in shift – where it is expected that they will sleep through the night unless disturbed to deal with an emergency – is not entitled to have those hours count towards their minimum wage entitlement. Charlie Wood, Associate, outlines the Supreme Court decision in the case of the Royal Mencap Society.

Royal Mencap Case

The Royal Mencap Society is a UK charity that aims to help people with learning disabilities. In this case, the claimant slept, by arrangement, at her place of work whilst on her sleep-in shift. She was expected to respond to the needs of the people she supported and to respond to and deal with emergencies that might arise. It is common practice that workers on such shifts would be paid an ‘allowance’ i.e. an additional payment as consideration for carrying out the sleep-in shift. However, there is no legalisation to govern how much this should be or if it should even be paid at all. If workers are paid for any time that they are actually awake and carrying out work, then they are arguably not entitled to any further payments.

The case was heard by the employment tribunal and the Employment Appeal Tribunal (EAT) before going to the Court of Appeal in 2018. While previous courts had taken the view that sleep-ins could count towards time worked, bearing in mind various circumstances including the requirement to be present for particular hours, the Court of Appeal disagreed. As the claimant slept by arrangement at her place of work, and was provided with suitable facilities for doing so, the Court of Appeal held that she was to be treated as being available for work during those hours and not actually working. As a result, the sleep-in exception applied; only those hours during which she was required to be awake should be paid at the national minimum wage.

What Does the Supreme Court Decision Mean for Sleep-in Shifts?

The Supreme court has finally made clear that there is a distinction between actually working or only being available for work – and it is only when actually working that time should count towards the national minimum wage calculation.

The Supreme Court clearly states in its decision that: “to be available for work, a person must be both awake for the purposes of working and not simply awake for his own purposes. This meant that the hours that he is permitted to sleep do not form part of the calculation of his hours for national minimum wage purposes (unless he is woken for work reasons).”

After such a tough year for many, particularly those working in the care sector, the final ruling that they are not entitled to be paid when effectively away from home due to work will understandably be a disappointment. However, the care industry was potentially facing a bill of £400 million in back pay had the court ruled that national minimum wage  should apply for the entirety of the shift. This alone could have led to a lot of care providers collapsing. Therefore, there is clearly a balance needed to protect the rights of workers but also ensure the survival of care providers.

For any questions regarding sleep-in shifts or for any other Employment Law related matter, please contact Charlie Wood on 0161 475 7673 or email [email protected].

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