The Court of Appeal has held that carers who carry out overnight “sleep-in” shifts are not entitled to be paid the National Minimum Wage (NMW) for the full duration of the shift, only when they are actually performing work.

The UK National Minimum Wage Act 1998 creates the right for workers in the UK to be paid an hourly rate of remuneration for work carried out. The National Minimum Wage Regulations 2015 (the 2015 Regulations) (and its predecessor the National Minimum Wage Regulations 1999 (the 1999 Regulations ))  contain complex provisions relating to how employers should calculate the number of hours worked.  The specific issue related to the provision of “time work” set out in Regulation 32 of the 2015 Regulations (with similar provisions in the 1999 Regulations).  This provides that “time work” includes hours when a worker is available, and required to be available, at or near a place of work for the purposes of working (unless the worker is at home).  This is further clarified that, if a worker, by arrangement, sleeps at or near a place of work and the employer provides suitable sleeping facilities, then the hours when the worker will be considered available are only those hours when the worker is awake for the purposes of working.

In the care sector, workers are often required to “sleep in” at premises in order to provide 24 hour care to elderly, disabled or other vulnerable people. This particular case involved a claimant who was a care support worker and was required to work a mix of day shifts and overnight “sleep-in” shifts to care for individuals with learning difficulties. No specific tasks were allocated during the overnight period, although she was required to keep a “listening ear” in case her support was required.  The claimant was claiming the NMW for the full duration of the “sleep in” shift.

The Court of Appeal held that on the reading of the 2015 Regulations and the 1999 Regulations, as well as a report by the Low Pay Commission, the provision was that the hours should count for NMW purposes only when the worker on a “sleep-in” shift was awake, or required to be awake, for the purpose of performing some specific activity.

The Court of Appeal then also considered a series of cases and held that whilst some could be distinguished on their facts (i.e in this particular case the worker was expected to be asleep), another had been incorrectly decided based on a mistaken understanding of those previous authorities.

This judgment will be very important in the care sector and is likely to bring relief to many employers who were concerned about both the future level of pay and the potential historic liability.

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