In March, we reported on the Supreme Court’s decision that the National Minimum Wage (NMW) is only payable for those parts of sleep-in shifts when the worker or employee is “awake for the purposes of working”, but not for the whole of the sleep-in shift.
As a result of the judgment in that case (Royal Mencap Society v Tomlinson- Blake and Shannon v Rampersand and another (T/A Clifton House Residential Care Home), the Department for Business, Energy and Industrial Strategy (BEIS) has issued updated guidance on how the NMW should be calculated for sleep-in workers.
Although the guidance provides a useful starting point, when making the calculation employers will need to consider each situation on its own facts to determine whether NMW is payable.
The guidance also provides examples to illustrate when the NMW may or may not be paid but distinguishes between sleep-in workers who are only entitled to NMW for those parts of the shift when they are awake and workers who “are expected to carry out tasks for all or most of a shift, and are only permitted to sleep between tasks where possible (such as napping when not busy)”. For the second type of workers, the guidance indicates “it is likely” that they should be paid “at least the minimum wage” for the entire shift, “including for any time spent asleep”. The stated reason is that those workers are, to all intents and purposes, working all of that time.
If you have any queries about how the Supreme Court’s decision in the Royal Mencap case or how the BEIS guidance may impact on your organisation, or indeed any queries about the NMW generally, please do get in touch with a member of our Employment Team.
