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The Department for Business, Energy and Industrial Strategy (BEIS) has updated its guidance on calculating the national minimum wage (NMW) for the purposes of sleep-in shifts following the Supreme Court's decision in Royal Mencap Society v Tomlinson-Blake.

It confirms, in line with the decision in Mencap, that those carrying out sleep-in shifts will only be entitled to the NMW when they are awake and carrying out duties.

BEIS notes that the position is different where workers are expected to perform activities for all or most of a shift, and are only permitted to sleep between tasks where possible (such as napping when not busy).  In these cases it is likely that at least the NMW must be paid for the whole of the shift, including for any time spent asleep, on the basis that the worker is in effect working all of the time.

The guidance stresses that each case may be different depending on individual circumstances, including what the contract provides and what is happening in practice.  It provides five examples of different arrangements to help illustrate how the principles set out by the Supreme Court might apply.

For further detail on the Supreme Court's decision in Mencap please refer to our recent bulletin 'Mencap – Supreme Court decision: a hollow victory?'