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Sleeping on the job

Mencap ‘sleep in’ cases

The background to the Mencap cases involved ‘sleep in’ shifts, which are common within the health and social care sector. They are shifts during which employees are allowed to sleep during the night. However, they must be available to be woken up to carry out their duties, if required.

The argument centred around the exceptions to the National Minimum Wage Regulations (NMW) under which ‘sleep in’ shifts should not be included as ‘working time’ for NMW purposes.

The wording of the legislation was thought to be clear and the practice developed where employers were paying a fixed payment for ‘sleep in’ shifts. A number of legal cases over the years created uncertainty around this. The Supreme Court decision in Mencap hopefully clarifies this issue.

In the case of Royal Mencap Society v Tomlinson Blake, the Supreme Court considered whether two care workers were entitled to the NMW for the whole of their ‘sleep in’ shift or just the time they were awake and working.

The Supreme Court dismissed the appeal by the employees and found that the time spent sleeping does not count towards ‘working time’ for the purpose of calculating the NMW. Only the time that the workers were awake and working could be counted towards the NMW calculations.

The Court distinguished between ‘working’ and being available for work. When workers are allowed to sleep during a night shift and are only required to respond when needed, the relevant hours for the NMW calculations are the hours when the worker is awake in order to work. 

This decision has come as a huge relief to all employers who rely on ‘sleep in’ staff. Had the decision gone in favour of the employees, then employers in these sectors would have faced an enormous financial burden. It also provides clarity for all those staff who are required to work ’sleep in’ shifts.