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The Supreme Court determines what is working time for NMW purposes

The Supreme Court determines what is working time

In a landmark case for the care sector the UK Supreme Court has upheld that sleep-in shifts are not working time for NMW purposes.

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The Supreme Court’s judgment provides clarity on one of the most contentious minimum wage issues facing the tribunals, and the care sector. It has held that workers on sleep-in shifts in care homes are engaged in "time work" only while they were awake for the purpose of working. The rest of the time they are merely "available for work" and not entitled to the National Minimum Wage (NMW).  

NMW Regulations

Under the NMW Regulations 2015, a worker who is not actually working may be treated as working if they are available (and are required to be available) at or near a place of work for the purpose of doing such work. There are two exceptions to this, one of which relates to where a worker sleeps by arrangement at or near a place of work and is provided with suitable facilities for sleeping. When a worker is using those facilities for sleeping it will be only be treated as working time when the worker is awake for the purpose of working.

However, case law has been inconsistent over the position of sleep-in time at an employer's premises and this is a particular issue for the care sector.

Court of Appeal and Supreme Court decisions

The cases considered by the Supreme Court were Tomlinson-Blake v Royal Mencap [2017] ICR 186 (“Mencap”) and Shannon v Rampersad [2015] IRLR 982 (“Rampersad”). Both cases involved care workers who were required to sleep at, or near to, the care home which they worked at and to be woken up if required. Both care workers were paid a fixed sum for the sleep-in shift. Mrs Tomlinson-Blake was paid additional sums if called on during the night for more than one hour, and Mr Shannon received free living accommodation in addition to the fixed sum. Both workers claimed that they were being underpaid under the NMW legislation on the basis that the entire sleep-in shift was work.

In 2018 the Court of Appeal ruled that the workers in both cases were to be treated as “available for work” during their sleep-in shift rather than actually working. This is on the basis that the worker must be awake for the purpose of working for time spent at work to be considered working time.

In a judgment handed down on 19 March 2021, the Supreme Court upheld the Court of Appeal decision: workers on sleep-in shifts in care homes are engaged in "time work" only while they are awake and working. The rest of the time they are merely "available for work" and not entitled to the NMW.   It is important to note that this decision relates to a statutory exception regarding sleep-in arrangements.

It is also yet another Supreme Court case examining the complexities of determining working time for NMW purposes. Last month, the Supreme Court decision in the Uber employment status case held that time when drivers are logged into the app and ready and available to work is working time.  The tension between these two decisions (Uber workers were available for work and entitled to NMW for that time, but care workers available for work but not so entitled), demonstrates how this is a very nuanced area.

Impact of the decision

This judgment will be welcome news to employers in the care sector. While recognising the importance in society of carers, the judgment clarifies that workers who undertake sleep-in shifts at care homes or similar places of work may be ‘on call’ and available to work, but are only entitled to be paid the NMW for that time if they are actually called on to work.

Business should ensure their pay and working practices meet NMW requirements, for workers with sleep-in and other standby arrangements. This includes ensuring that where workers are called on and are awake and working, they are paid the NMW for that time. How to determine working time more generally for NMW purposes is a complex area and employers should carefully consider their working practices to minimise risks of non-compliance.

Please speak to your usual KPMG Employment Law or Employment Tax contacts if you have any queries.

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