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Employment Law: National minimum wage and ‘sleeping in’

Are care workers who ‘sleep in’ at work entitled to the national minimum wage for the whole of their shift? In Mencap v Tomlinson-Blake, care workers had to spend the night at or near their place of work. They were expected to sleep for most of that period. They might be woken if their assistance was needed. Were they entitled to the minimum wage even when they were sleeping?

The Employment Appeal Tribunal said that a ‘multifactorial’ test should be applied. Courts would look at things such as the contract between employer and employee, the nature of the tasks required and the degree of responsibility the employee had.

The Court of Appeal disagreed. It relied on regulation 32 of the National Minimum Wage Regulations. Regulation 32 says that the minimum wage only needs to be paid during hours when the employee is awake for the purposes of working. This is the case even if sleeping arrangements are provided.

This is a good decision for employers but caution is required. In care worker cases, the workers are expected to sleep, even though they may be disturbed. This was an important part of the judge’s reasoning. There are other cases where this will not be the case. For example, a night watchman may be allowed to sleep at times but is expected to perform significant duties throughout the shift. They might be entitled to the minimum wage of the whole of their shift. Each case will be decided on its facts. This case is helpful for employers though, especially those in the care sector where budgets are tight.

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