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Is a 'sleep-in shift time work' for the purposes of the National Minimum Wage Regulations 1999 and 2015?

No, and nor can it be 'work' in any other sense in the Regulations, holds the Supreme Court in Royal Mencap Society v Tomlinson-Blake.

This case puts to bed a long-held belief that sleep-in shifts could qualify for the national minimum wage following British Nursing v HMRC. That held that a worker could be 'working' even if not required to be awake (or simply be available for work) if a need arose. With most sleep-in shifts, that would be for personal care for vulnerable people.

The Supreme Court has swept this, and other similar decisions, aside by making the following main findings on appeal:

  1. For the purposes of deciding whether a person is 'working' under the Minimum Wage provisions, it does not matter that a worker is at their employer's direction or required to follow instructions;

  2. The Low Pay Commission had not intended that anyone who was permitted to sleep could be deemed to be 'working' or engaged in 'time work' when they first reported to government prior to the 1999 version of the regulations;

  3. In the definition of 'time work' the phrase "awake for the purposes of working" is composite and cannot be broken up into 'awake' and 'for the purposes of working'. Any time not asleep cannot therefore be 'time work';

  4. The multi-factor test that Mrs Justice Simler set out in the EAT to determine whether someone was 'working' simply by being present before deciding whether they were engaged in 'time work', is not required under the National Minimum Wage Regulations and should not be followed;

  5. If a worker is actually called on to respond to someone's care needs (or any other duties) when on a shift, that time will count as 'time work' and be subject to the National Minimum Wage.

All the judges giving a judgment in the case (unfortunately Lord Kerr had died before judgment could be handed down) decided that British Nursing v HMRC should not be followed any longer as it was not a correct statement of the law for sleep-in shifts. The Court was however divided on why that was, and so Tomlinson-Blake cannot be regarded as binding case law on whether similar legal arguments on different facts to those in British Nursing could be raised again in respect of the home-working exception in the Regulations.

Thanks to Matthew Jackson of Albion Chambers for preparing this case summary.