Update: Government guidance on sleep-ins and payment of National Minimum Wage

Latest update provides helpful guidance to the care sector on what constitutes working hours for which the National Minimum Wage (NMW) must be paid.

The Government has updated its guidance on what amounts to working time for the purposes of calculating the NMW for sleep-in shifts, with a number of examples added to clarify the position in light of the Supreme Court’s Royal Mencap judgment published on 19 March 2021 (you can read our blog here).

The Royal Mencap “sleep-in” decision confirmed that UK care providers do not have to pay their staff for every hour of a sleep-in shift to comply with the NMW Regulations, and it is only time spent awake for the purposes of performing work that should be classified as working time.

The guidance explains that for workers performing sleep-in shifts they are:

  • contractually obliged to spend a shift at or near their workplace, usually at night but it could be during the day;
  • expected to sleep for all or most of that shift; and
  • woken if required to undertake a specific work activity.

It confirms that workers are only entitled to be paid for those hours of a sleep-in shift where workers are awake for the purposes of working. A set of sleep-in examples have been set out based on the principles outlined by the Supreme Court to help illustrate how those principles might apply to particular scenarios. The relevant examples are set out in the category marked “Special situations” in the updated guidance.

Key takeaway

A couple of points are worth noting from the updated guidance. Each sleep-in case may be different depending on the individual circumstances, requiring a careful look at what the worker’s employment contract provides for in relation to pay for sleep-ins and what is actually happening in practice as this may have changed over time. The guidance emphasises that in the case of a worker woken frequently during sleep-in shifts, contrary to the original expectation, the worker would likely cease to be a sleep-in worker and the shift would be a waking night entitling the worker to be paid for all hours of the shift. It is therefore important that care providers keep under review the number of disturbances when workers are performing sleep-ins and ensure that the contractual position reflects the situation on the ground.

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