A judgement from the UK Supreme Court on 19 February on the subject of sleep-in work shifts found against a previous court ruling which stated that workers were entitled to be paid National Minimum Wage (NMW) per hour while they were asleep. The court found unanimously that they are only entitled to NMW when they are required to be awake and working. This is good news for UK residential summer schools and year-round boarding schools, most of whom will have residential staff on call at night.
In their judgement in the cases of Royal Mencap v Tomlinson-Blake and Shannon v Rampersad, the Court unanimously found “in relation to a sleep-in worker who is provided with suitable facilities for sleeping, time in the hours she is permitted to sleep is only treated as work time when she is, and is required to be, awake for the purpose of working.”
The ruling comes as a particular relief to employers in the care sector – which was specifically involved in both cases – not least because, had the judges found in favour of NMW payments for all hours of sleep in shifts, the care industry could have faced paying out an estimated £400 million in back pay and taxes. The boarding-school sector, having adapted their pay and conditions to previous rulings, may be able to relax them a little.
The summer-schools sector, much of which seems to have been unaware of the legal dangers they faced, should be pleased, but not complacent. The judgement does not seem to allow employers carte blanche to pay nothing to workers they require to sleep on site.
In its judgement, the Court cited the position of the Low Pay Commission (LPC), a statutory body which has an important role in setting the NMW. In its first report to Parliament, it stated its position on sleep-in shifts, a position it has not subsequently changed and is quoted in the judgment:
“For hours when workers are paid to sleep on the premises, we recommend that workers and employers should agree their allowance, as they do now.”
This suggests that the Court presupposes that ‘an allowance’ will be paid for sleep-in shifts, though this allowance need not be set at the minimum wage. The judges also agree with the LPC position that “workers should be entitled to the National Minimum Wage for all times when they are awake and required to be available for work.”
Of course, nothing in this judgement states that summer-school staff required to be on call overnight should be paid an allowance, though it is clear that they must be paid minimum wage during the sleep-in shift for any time they are awake, not only during emergencies, but also because they are required to undertake light duties, such as helping out with breakfast.
