UK Supreme Court dismisses 'sleep-in' shift pay appeal

The Supreme Court found in favour of Mencap, the learning disability charity, and a care home in joined appeals brought by care workers who worked regular overnight 'sleep-in' shifts. The workers had argued that the full shift, including time in which they were permitted to sleep unless awake for the purpose of working, should be classed as either 'time work' or 'salaried hours' for the purposes of the NMW Regulations.

In its judgment, the court ruled that a person was not necessarily 'working' for NMW purposes simply because they were acting at the direction of an employer or required to follow instructions. The court also found that the phrase "awake for the purposes of working" in the definition of 'time work' should be read as a whole, rather than the word "awake" read on its own.

The case has no bearing on the meaning of the word 'work' for the purpose of the Working Time Regulations.

The court also referred back to the original recommendations of the Low Pay Commission (LPC), on which the 1999 version of the NMW regulations were based. The LPC had recommended that sleep-in workers should receive an allowance and not the NMW for the duration of a shift unless they were awake for the purposes of working, although this recommendation was clumsily worded in the regulations.

"The LPC's recommendation was accepted by the government, and so it is right to proceed on the basis that the purpose of the sleep-in provision in the 1999 regulations for sleep-in workers was to implement that recommendation," said Lady Arden, giving the judgment of the court. "There is no evidence of any other relevant purpose."

"It is clearly not the position that, simply because at a particular time an employee is subject to the employer's instructions, he is necessarily entitled to a wage. There are many situations when a worker has to act for the benefit of his employer which do not count for time work purposes, for example when he travels between home and work. Nor ... in my judgment is the NMW dependent on the extent to which the work produces value for the employer or enables the employer to say that he has fulfilled his duty to someone else: that would make the NMW depend on the terms of a contract between private parties," she said.

Lady Arden likened the position of Mencap care worker Claire Tomlinson-Blake, who had to "have a 'listening ear'" during her sleep-in shifts in case the vulnerable adults in her care required assistance during the night, to that of a worker who "must travel from home to the employer's place of business".

The judgment is a highly significant one for the care sector, which has been awaiting clarity from the courts on the issue. In 2018, the Court of Appeal decided that "the only time that counts for NMW purposes is time when the worker is required to be awake for the purposes of working", reversing earlier judgments that sleep-in shifts did attract the NMW.

Commenting in response to the ruling, Mencap chief executive Edel Harris said that the charity had contested the appeal "because of the devastating unfunded back pay liabilities facing providers across the sector", worth an estimated £400 million.

"It is no exaggeration to say that if the ruling had been different, it would have severely impacted on a sector which is already underfunded and stretched to breaking point," she said.

The government has updated its guidance on working hours for which the NMW must be paid to note that it is "considering the implications of the judgment for this guidance".