Under the National Minimum Wage Regulations 2015 a worker who is not actually working may be regarded as working if they are available (and are required to be available) at or near a place of work for the purpose of doing such work.

The exceptions to this ruling are either:

  • The worker’s home is at or near the place of work, time the worker is entitled to spend at home is not treated as working time.
  • Where the worker sleeps by arrangement at or near a place of work and is provided with suitable facilities for sleeping, time during the hours they are permitted to use those facilities for the purpose of sleeping shall only be treated as working time when the worker is awake for the purpose of working.

The case law on this point has caused much confusion and anxiety particularly for care sector employers.

This new case of Royal Mencap Society v Tomlinson-Blake & Shannon v Rampersad t/a Clifton House Residential Care Home, involved two care workers (Mrs Tomlinson-Blake and Mr Shannon) who were contractually obliged to spend the night at, or near, their workplaces and expected to sleep for most of the time but could be woken if their help was needed. They were paid a fixed sum for each sleepover shift; Mrs Tomlinson-Blake was paid extra if called on during the night for more than an hour, and Mr Shannon received free accommodation all year round in addition to the fixed sum. The workers claimed they were being underpaid under National Minimum Wage legislation. They argued the whole sleep-in shift should be paid.

The Court of Appeal disagreed. It decided that the workers in both scenarios were to be treated as available for work during their sleep-in shift, rather than actually working. The result was that only those hours when they were awake for the purpose of working counted for NMW purposes.

The court held that the recommendations in the reports of the Low Pay Commission were admissible as an aid to construction of the law but were not decisive.

The court also said that earlier principles in previous case law were still valid and didn’t necessarily conflict with these findings.

The case will come as a concern to unions and a great relief to many employers in the care sector.

If you would like further information about National Minimum Wage please don’t hesitate to contact Joan Pettingill or a member of our award-winning Employment Team.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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