This case involved appeals from care workers who sought national minimum wage for periods of on-call time when they were on ‘sleep-in shifts’.   The workers were contractually obliged to spend the night at the workplace and were expected to sleep for most of the period.  The reason they were contracted in this way was that they could be woken if their assistance was required.  They were paid a fixed sum for the shift with additional sums if called upon.  One of the Claimants also received free accommodation.   The issue was whether the care workers were entitled to national minimum wage when they were on their ‘sleep-in shifts’.  The Court of Appeal had dismissed their appeal and they appealed to the Supreme Court.

The Supreme Court dismissed the appeals again.   There was a detailed examination of the interpretation of the Regulations surrounding National Minimum Wage.   The Low Pay Commission was established under the National Minimum Wage Act 1998 to provide an authoritative role in how the national minimum wage should work.  They recommended that workers should be entitled to national minimum wage when they are awake and required to be available for work.  This report was an important aid for the interpretation of the National Minimum Wage Regulations 1999.  Beyond this the court had to examine the actual work undertaken by the individuals.   They were required on occasion to distribute breakfast to the residents or to respond to emergency calls.   The period when the worker was awake and assisting was taken into account for the purposes of national minimum wage. The other time, spent asleep, was not taken into account.

There was discussion relating to the 2002 case of British Nursing Association v Inland Revenue concerning similar issues.   This allowed for national minimum wage to apply when the individual was ‘available for work’.  The Supreme Court overruled this decision citing it was illogical when examining the 2015 Regs alongside the 1999 Regs.  Accordingly, the proper interpretation of the National Minimum Wage Regulations means that the sleep-in workers are not entitled to national minimum wage for the periods where they are expected to be sleeping.  Lady Arden also considered that previous cases, including Burrow Down Support Services Ltd v Rossiter [2008] ICR 1172, and Scottbridge Construction Ltd v Wright [2003] IRLR 21 were wrongly decided and should also be overruled. Accordingly, the appeal was dismissed.

Practical Lessons

The decision of Lord Carnwath in the Supreme Court is a logical one with ‘sleep-in’ not receiving the right to the national minimum wage.  If the decision had gone the other way, it could have cost care agencies and charities like Mencap hundreds of millions of pounds.  The decision will also give certainty to care providers knowing that they will not be facing a bill for back-pay relating to sleep-in workers.  However, there have been calls for a review of the rules regarding payments for sleepovers, not least by Mencap themselves in responding to the judgement so it remains to be seen where this leads. 
https://www.supremecourt.uk/cases/uksc-2018-0160.html 

A review of the Court of Appeal decision is available here:
https://www.legal-island.com/articles/uk/case-law/2018/july/royal-mencap-society-v-tomlinson-blake-and-shannon-v-ramper