The Supreme Court’s judgment in the Mencap case confirms that employers do not have to pay their workers the national minimum wage unless they are awake for the purposes of working. This important decision will be welcomed by employers in the care sector, in particular, and provides much needed certainty.
Carers providing personal care to vulnerable people often work sleep-in shifts, during which they have to be at or near their workplace, but are expected to be asleep – save for in an emergency.
Previous cases, for example British Nursing v HMRC, had held that a worker could be “working” even if asleep. The Supreme Court has now overruled these cases.
Everything turns on the interpretation of the NMW Regulations in relation to “time work”, where – broadly speaking – a worker is paid by reference to the number of hours they work (rather than by salary). The Regulations provide that time work includes hours when a worker is “available”, which is defined as the “hours when the worker is awake for the purposes of working”.
In coming to its decision, the Supreme Court looked at a report of the Low Pay Commission which the government had accepted when the first version of the NMW Regulations was introduced in 1999. The report recommended that:
“For hours when workers are paid to sleep on the premises…workers should be entitled to the National Minimum Wage for all times when they are awake and required to be available for work.”
The Supreme Court concluded that the clear intention behind the ‘sleep-in exception’ (in what is now Regulation 32) was that employers should continue to pay sleep-in workers a set allowance and not the NMW.
Simply being present or having to have a “listening ear” did not mean someone was working for NMW purposes. They had to be awake and have specific duties to perform.
The arrangements of sleep-in workers vary greatly and so the specific contractual agreement must still be considered in each case. However, the broad principles are now clear, to the benefit of employers.