'On Call' Sleeping in Employees are not entitled to NMW while they sleep

Article

26 July, 2018

Mencap v Tomlinson-Blake

The Court of Appeal ruled on Friday 13th July 2018 that periods of 'sleeping in' are to be treated as being available to work, opposed to 'actually working' and therefore do not constitute 'working' for the purposes of National Minimum Wage (NMW).

Ms Tomlinson-Blake, a care support worker, worked for Mencap since 2004. Ms Tomlinson-Blake was required to carry out a sleep in shift between 10pm and 7am at the homes of the men she provides care and support for. No specific tasks were allocated during this shift, but to remain at the property for the duration and keep a 'listening ear' during the night in case support is needed. Ms Tomlinson-Blake claimed that she was entitled to have the totality of her sleep in period counted as time worked for NMW purposes.

The case was heard before the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT), both of which upheld the claim on the basis that Ms Tomlinson-Blake was 'actually working' the whole time and the sleep in exception therefore did not apply. Underhill LJ considered the issue in the Court of Appeal and overturned the decision, stating that the decision of the ET and EAT "was wrong".

Underhill LJ inferred that the need to 'keep a listening ear' was "in any event metaphorical" and did not affect the analysis. Ms Tomlinson-Blake was expected to get an uninterrupted night's sleep during her sleep in periods. He concluded that she is to be treated as available for work during these periods and following Regulation 15 the sleep in exception applies. Resulting in only hours that the employee is "awake for the purpose of working" shall constitute work for the purposes of NMW.

The ruling will be welcomed by many employers, especially in the care sector, who commonly assign 'on call' sleep in work periods.

For further information please contact our Employment and HR team by telephone on 0333 207 1135 or alternatively, send your enquiry to us through our online contact form.

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