The Supreme Court has held in Royal Mencap Society v Tomlinson-Blake that employees are not entitled to the national minimum wage (NMW) for the full duration of their sleep-in shift.It agreed with the Court of Appeal's previous decision in Mencap that they are only entitled to the NMW when they are awake and carrying out duties, rather than being available for work.
In coming to its decision, the Supreme Court, like the Court of Appeal before it, referred to the recommendations of the Low Pay Commission (LPC) in its First Report published in June 1998, which the government largely accepted. It concluded that the report was an important aid to the interpretation of the NMW Regulations, which deal with the calculation of the NMW. The Report, which refers to those required to be on-call who sleep on their employer's premises, states:
"For hours when workers are paid to sleep on the premises, we recommend that workers and employers should agree their allowance, as they do now. But workers should be entitled to the National Minimum Wage for all times when they are awake and required to be available for work."
The Court concluded that the objectives of the provisions of the NMW Regulations designed to deal with the calculation of hours for sleep-in work are those identified by the LPC. This meant that work should normally include time for which a worker was required to be available for work at the place of work. However, in the Court's view "(by implication) that would not apply if the worker was not at the place of work but at home (the home exception). It would also expressly not apply to workers who were required to be on call and to sleep at their employers' premises".
The Supreme Court clearly states in its decision that, "To be available for work a person must be both awake for the purposes of working and not simply awake for his own purposes. This meant that the hours that he is permitted to sleep do not form part of the calculation of his hours for NMW purposes (unless he is woken for work reasons)."
Take note: The decision in Mencap is clear; those carrying out sleep-ins will only be entitled to the NMW when they are awake and carrying out duties. While this is good news for care providers, who will be relieved not to be facing the potentially bankrupting liability of NMW back-pay claims, it also throws up various knotty issues. What happens if those carrying out sleep-ins have been paid the NMW for them? Should this continue and, if it isn't, what are the risks? What about staff morale? For further information on this decision, and a discussion of the potential pitfalls, please refer to our recent bulletin 'Mencap – Supreme Court decision: a hollow victory?'