The Supreme Court has held in Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and anor that “sleep-in” care workers are only entitled to the national minimum wage (NMW) for the periods they are awake during a sleep-in shift.

The joint appeal was brought by two individual care workers. The first, Ms Tomlinson-Blake, provided care to vulnerable adults in their own home. When she worked at night, she had to “keep a listening ear out” while she was asleep and to attend to emergencies which did not happen very often. For each sleep-in shift, she was paid an allowance plus one hour’s pay at the NMW rate.

The other claimant, Mr Shannon, worked at a residential care home. He was also allowed to sleep during his shift but had to assist the night care worker on duty in the event that they needed his help. However, this did not happen very often. He was provided with free accommodation at the care home and paid a fixed amount per week.

Both claimants argued that they should be paid for each hour of their sleep-in shift.

The crux of the case was how the National Minimum Wage Regulations (NMWR) should be interpreted. The Supreme Court concluded that the interpretation should be in line with the recommendations of the Low Pay Commission and specifically the recommendation that sleep-in workers should receive an allowance and not the NMW unless they were awake for the purposes of working.

Consequently, the Court held that the time when Ms Tomlinson-Blake and Mr Shannon were permitted to sleep should not be taken into account. Instead only those hours that they were awake and working should be paid at the NMW rate.

Lady Arden, who gave the lead judgment, held that “The sleep-in worker who is merely present is treated as not working for the purpose of calculating the hours which are to be taken into account for NMW purposes…” The fact that workers are required to be present during specified hours is not enough to establish that they are “working”.

Jo Seery of Thompsons commented that: “The law has failed some of the poorest and most downtrodden workers who have given their all in an unprecedented national crisis. The unions have stood up for their members and pushed this as far as they can. Now it is for the government to step up and match their clapping for carers by immediate action to support those without whom the UK’s failing social care system would collapse."

Thompsons will provide a more substantial summary of the decision in a future LELR.

Read the judgment in full here.