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Care-workers 'sleeping-in' no longer due National Minimum Wage

13 July 2018

The Court of Appeal have today confirmed that where care workers are required to 'sleep-in', the only time that counts for National Minimum Wage ('NMW') purposes is time when the worker is required to be awake for the purposes of working.

The appeal bought by Mencap is the latest in a long line of cases where the courts have considered whether 'sleep-in time' is working time and therefore subject to NMW. The case involved a care worker who supported vulnerable adults. She worked a sleep-in shift from 10pm until 7am during which no specific tasks were allocated, but there was a continuing obligation to remain at her post and keep an ear out in case she was needed to deal with any incidents. She was paid a flat rate of £22.35 plus one hour's pay. The Tribunal and EAT found that the carer was performing 'time work' throughout her shift. They relied on the fact that the carer was required to be present and would have been disciplined if she left her post. Although she was only called upon infrequently during the sleep-in shift, the need to intervene was genuine.

The decision of the EAT led to the Department for Business, Energy and Industrial Strategy (BEIS) changing their guidance to state that NMW should be paid for sleep-in shifts. However, in recognition of the difficulties posed by the often large amount of arrears of wages and penalties, in July 2017 it was announced that the financial penalties faced for underpaying workers for sleep-in shifts would be waived in respect of shifts undertaken before 26 July 2017. On 1 November 2017, financial penalties in respect of failures to pay the NMW to sleep-in staff were reinstated.

Although Mencap committed to paying NMW for sleep-ins, the charity and various other social care groups warned that as many as two-thirds of employers in care sector faced insolvency if they had were required to pay the back-pay bill. As a result, Mencap, supported by the umbrella group, Care England, appealed the decision of the EAT. Lord Justices Ernest Ryder, Nicholas Underhill, and Rabinder Singh reversed the decision of the EAT and held that "sleepers-in... are to be characterised for the purpose of the regulations as available for work… rather than actually working… and so fall within the terms of the sleep-in exception in regulation." As such, they are only entitled to NMW for the time they are required to be awake for the purposes of working.

This is unlikely to be the end of the road as UNISON have already said they are considering an appeal to the Supreme Court.

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