Supreme court decision – Sleep-in care workers not entitled to minimum wage

The Supreme Court has today ruled that time spent whilst asleep is not “working time” for the purposes of the National Minimum Wage Regulations.  It was argued on behalf of care home workers that as they had to be available to provide work whilst asleep and were sleeping away from their homes, that this did count as “working time”.

Emma Hamnett, partner at national law firm Clarke Willmott LLP said: “Lady Arden has today ruled that being “present” was not sufficient to count as working time and as such employees or workers who are required to sleep overnight as part of their roles and perform work if awaken, are not to be paid for the time spent asleep during their shifts.  It was argued by the Royal Mencap Society that there should be some distinction between time spent working and awake and working and asleep and the two concepts of work are different and should be treated differently in looking at the meaning of “working time”.  In other words, to pay a worker for being asleep and doing nothing, isn’t the same as being awake, working and undertaking tasks.

“The ruling brings an end to long running litigation and will be a relief for the care home sector with an estimated back pay liability of £400m as well as additional costs going forward.  Mencap has been paying top up payments for sleep in shifts since 2017 and in a statement today following the judgment has called for Local Authorities to pay top up payments for sleep in shifts and for the Government to increase much needed funding for the care sector.

“The decision today is legally correct, as determined by The Supreme Court. Understandably, sleep-in shift workers are likely to feel aggrieved by it but I don’t think it should fall on the private sector to fund the payments, it should come from the Government and this has also been voiced today by Mencap.”