Are carers who sleep at a client's home, technically being 'on call', entitled to the minimum wage while they are asleep?
No, held the Court of Appeal in MenCap v Tomlinson-Blake.
The National Minimum Wage Act 1998 and the National Minimum Wage Regulations 2015 contain highly complex rules about calculating the number of hours worked by a worker, which is one of the figures needed to work out the workers' average hourly pay.
Underhill LJ considered the issue as a matter of principle, deciding that workers sleeping in under this sort of arrangement will only be entitled to have sleep-in hours counted for minimum wage purposes where they are, and are required to be, awake for the purpose of performing some specific activity.
He then went on to review about a dozen previous authorities. He held at least one of them to be wrongly decided, meaning that the EAT's decision below (which concluded that a multi-factorial approach should be used) was necessarily flawed because it had been attempting to reconcile previous caselaw that it, the Court of Appeal, now considered wrong.
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