Carers are often allowed to sleep during night shifts, keeping a listening ear – but not a waking eye – open for when their charges need them. In a ruling that answered what has long been an open question in the law, the Supreme Court found that, when assessing whether a worker is receiving the National Minimum Wage (NMW), hours spent asleep should not be taken into account.
The Court heard two appeals, the first concerning a highly qualified care worker who provided support to two vulnerable men in their own homes. Her duties included nine-hour night shifts for each of which she was paid £29.05. She was permitted to sleep during those shifts, but was required to keep her ears open and to respond to requests for help. In practice, the need for such help was real but infrequent.
She asserted that she was entitled to receive the NMW for all the hours of her sleep-in shifts on the basis that she was actually working throughout them, even when she was asleep. Her claim was upheld by an Employment Tribunal and the Employment Appeal Tribunal, but her employer – a mental health charity – successfully challenged that outcome before the Court of Appeal.
The second case concerned a man who worked as an on-call night care assistant who was provided with accommodation in a studio within a small care home. He was required to be present in the studio between 10:00 pm and 7:00 am, but was permitted to sleep during those hours. He had to respond to requests for assistance but, in practice, such requests were rare. In return for his services, he received free accommodation and £50, later £90, per week.
He asserted that every hour of his night shifts counted as salaried hours’ work for NMW purposes, for 365 days a year. On that basis, he claimed to be entitled to almost £240,000 in arrears of pay. However, after passing through the tribunal system, his claim foundered before the Court of Appeal.
In dismissing both appeals, the Supreme Court gave weight to the recommendations of the Low Pay Commission (LPC), a body that was established under the National Minimum Wage Act 1998. The expert body’s membership is widely drawn from both sides of industry and its binding recommendations have to be followed by the government unless reasons are provided to Parliament for not doing so.
The government had accepted the LPC’s recommendation that sleep-in workers should receive an allowance, and not the NMW, unless they are awake for the purposes of working. On that basis, the Court found that, if a worker is permitted to sleep during a shift and is only required to respond to emergencies, hours spent asleep should not be included in NMW calculations.
In both cases, the Court found that time when the carers were allowed to sleep should only be taken into account for the purpose of calculating whether they were paid the NMW to the extent that they were awake for the purpose of working. Their arguments that their entire shifts fell to be taken into account for that purpose therefore failed. That outcome, the Court found, accorded with a true interpretation of the National Minimum Wage Regulations 1999 and 2015.