A long-running case has concluded with the Supreme Court ruling that care workers who are required to sleep at their workplace in case they are needed during the night are not entitled to National Minimum Wage for the time that they are sleeping. The Supreme Court has agreed with the Court of Appeal’s 2018 decision that a sleep-in was working time only when the worker is awake to carry out any relevant duties.
The court findings included:
- That the Low Pay Commission had not intended that anyone permitted to sleep could be considered “working” or engaged in “time work”
- In the definition of “time work” the phrase “awake for the purposes of working” cannot be broken up into “awake” and “for the purposes of working”. Any time not asleep cannot therefore be “time work”
- If a sleep-in worker responds to someone’s care needs (or any other duties) when on a shift, that time will count as “time work” and be subject to the NMW
Many agency workers are who are engaged in the social care industry will have hoped for a different outcome, perceiving that they are not paid a fair wage for their sleep-in shifts. Unison general secretary Christina McAnea said: “No one is a winner from today’s judgment. Everyone loses until the government intervenes to mend a broken system that relies on paying skilled staff a pittance.” Edel Harris, chief executive of Mencap, said the “legislation covering sleep-in payments is out of date and unfair and we call on government to reform it,” and called for a “thorough and meaningful review of the social care workforce.”
