September 27, 2021

Volume XI, Number 270

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September 27, 2021

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Sleepovers and the NMW, Part II – clarity at long last for the UK care sector

It was what seems an eternity ago in July 2018 that the Court of Appeal handed down its judgment in the combined cases of Royal Mencap v Thompson Blake and John Shannon v Jakishan and Prithee Rampersad (t/a Clifton House Residential Home). A link to our blog post at that time is here.  Readers will see that we hoped at the time that the judgment of the Court of Appeal would not be the subject of an appeal, a hope which as it turned out was disappointed almost immediately. Almost three years and one pandemic later, that appeal was decided by the Supreme Court late this month and, thankfully, its conclusion supports that of the Court of Appeal. As there is really nowhere else for the issue to go from here, it would appear that we have clarity at long last, for the UK care sector in particular.

By way of a reminder, the case deals predominantly with the positon for “time workers” under Regulation 32 of the National Minimum Wage Regulations 2015. Simply put, this provides that working time (and the corresponding right to at least the minimum wage) includes time when a worker is available for work but not if the worker is awake for the purposes of working (termed the “sleep exception”). Any proximity of timing between the handing down of this judgement and World Sleep Day on 19 March is just coincidence, I am assured.

In Mencap, the Court of Appeal developed the principle that where a worker is expected to sleep, they are “available to work” and so the sleep exception applies, meaning they are only entitled to be paid the NMW for periods when they are awake and actually working. By contrast, where a worker is expected to work but permitted to sleep on shift once that is done, they are working and so the sleep exception does not apply.

Thankfully, the Supreme Court has now provided an arguably clearer position on the question of whether employees can be deemed to be working (and therefore entitled to the NMW for that time) even though asleep. In particular:

  • It rejected a return to the “multifactoral” approach of determining whether time spent asleep is working time for NMW purposes which had blighted this area for many years;
  • It was unanimous in considering  that prior cases should no longer be considered authoritative. They were, however were divided on the reasons as to why, which does possibly leave the door open to arguments being run in future cases based on the old case law. A commonality in the Supreme Court’s reasoning was, however, the essential perversity of the suggestion that someone who is asleep can be considered to be working, rather than (at best) available for work. Lady Arden stated in particular that it was “significant, not happenstance” that the sleep-in provision is attached to being available for work, and not to working itself. [ Note that although the Supreme Court did not say so in terms, whether you actually sleep or not is immaterial – the issue is whether you are expected to do so absent any work calls on your time, not whether you then lie awake fretting about something, racked with indigestion or profoundly regretting that second espresso].
  • Their Lordships set out that, with regards to time workers, the basic proposition must therefore be that if they are not awake then they are not doing work. Lady Arden went further than this, stating that she considered that workers are also not doing time work unless they are awake for the purposes of working. On this basis, she said it is necessary to look at the arrangements between the employer and the worker to see what the worker is required to do when not asleep but within the hours of the sleep-in shift.

Overall, the Supreme Court’s judgment is a significant result for the beleaguered care sector and provides helpful (and much needed) clarity on the position of whether sleep-in workers are entitled to NMW.

We hope that this concludes the narrative on this legal position for good. Sweet dreams.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 89
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About this Author

Fiona Sellers Labour & Employment Attorney Squire Patton Boggs Leeds, UK
Associate

Fiona Campbell is a lawyer in our Labour & Employment Practice Group based in our Leeds office. Fiona covers all areas of contentious and non-contentious work.

Fiona’s particular expertise covers to defending a wide range of Employment Tribunal claims which she runs at every stage, including undertaking advocacy at Tribunal, where appropriate. Fiona’s particular expertise includes defending claims of unfair dismissal, wage disputes, whistleblowing and various types of discrimination.

Fiona’s non-contentious experience includes drafting and reviewing service agreements,...

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