Sleepy exception

The National Minimum Wage (NMW) regulations state that workers are entitled to be paid the NMW for the actual hours they work. In the conjoined cases of The Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersand, the Court of Appeal clarified that workers who are required to sleep at or near the place of work and are provided with suitable facilities for sleeping, are not entitled to the NMW while they are asleep.

Basic facts

Ms Tomlinson-Blake, a care worker for Mencap, provided support for two men who needed 24-hour care in a privately-owned home. She worked a nine-hour sleep-in shift between 10pm and 7am for which she received a flat rate payment of £29,05. She was not allocated any specific tasks but she was required to remain in the home and “keep a listening ear out” in case her support was needed, which happened very rarely. Ms Tomlinson-Blake claimed that, as a time worker, all the hours she spent sleeping should be counted as time work under regulation 15 and she should be paid the NMW for the whole of her sleep-in shift.

Mr Shannon worked as an on-call night care assistant in a residential care home from 10pm to 7am, He slept in a flat provided by his employer, which was also his home. He was required to help the night care worker on duty at the home if they asked for his assistance, although this rarely happened. He claimed that, as a salaried hours worker, he was entitled to be paid the NMW for the whole shift under regulation 16(1A).

Relevant law

Regulation 15 of the NMW states that time work includes time when a worker is available “at or near a place of work” unless the worker is at home. “Hours when a worker is ‘available’ only includes hours when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping”.

Similar provisions apply to salaried hours workers. Specifically, Regulation 16(1) states that salaried hours work includes time when a worker is available “at or near a place of work” unless the worker’s home is at or near the place of work and “the time is time the worker is entitled to spend at home”. Section 16(1A) states that where a worker who “by arrangement sleeps at or near a place of work and is provided with suitable facilities for sleeping, time during the hours he [sic] is permitted to use those facilities for the purpose of sleeping shall only be treated as being salaried hours work when the worker is awake for the purpose of working”.

Decisions of lower courts

The tribunal held that Ms Tomlinson-Blake was actually working so that the sleep-in exception did not apply. It did not matter that she may have had little to do during the sleep-in shift, she was required to be there and exercise her professional judgment as to whether intervention was required. The EAT agreed.

The tribunal dismissed Mr Shannon’s claim on the basis that it fell within the “at home” exception under section 16(1). The EAT (weekly LELR 445) also dismissed the claim on the basis that the sleep-in exception for salaried hours workers in regulation 16(1A) applied.

Court of Appeal decision

Upholding Mencap’s appeal, the Court of Appeal held that the crucial question was whether Ms Tomlinson-Blake was actually working or only available for work. As she “was expected to, and almost always did, get an uninterrupted night’s sleep”, she was not actually working and the sleep-in exception applied. The fact that she had to keep a “listening ear” was irrelevant as this was something that any sleeping-in worker would have to do.

It then dismissed Mr Shannon’s appeal, holding that it did not matter whether the “at home” or the “sleep in” exception applied, as the only question was whether he was actually working or only available for work. As it was impossible “in any common sense approach” to describe Mr Shannon “as actually working except when he was called on to assist the night care worker”, the tribunal had been right when it rejected his claim.