- The Supreme Court has released its ruling that ‘sleep in shifts’ are not to be considered ‘time work’ for the purposes of the National Minimum Wage (‘NMW’) Regulations.
- This means that carers who have to stay overnight at their workplace are not entitled to the NMW for the time while they are asleep.
- Earlier judgements which held that sleep-in shifts did attract the NMW were overturned by the Court of Appeal who held "the only time that counts for NMW purposes is time when the worker is required to be awake for the purposes of working".
- The judgement by the Supreme Court confirms that the decision in British Nursing Association v HMRC should be dismissed and the suggestion that a worker could be 'working' even if they are not required to be awake was incorrect.
In its decision the Supreme Court set out the following;
- The phrase "awake for the purposes of working", which is used in the definition of 'time work', is not to be divided up into 'awake' and 'for the purposes of working'. The phrase is whole and therefore the number of hours worked excludes the hours when the worker is permitted to sleep. Unless they are ‘awake for the purpose of working’, any time spent asleep cannot consequently be 'time work'.
- At the point where the worker is actually called upon to undertake duties when on a sleep-in shift, that time will be considered as 'time work' and is subject to the NMW.
- To determine the meaning of the regulations, the Supreme Court concluded that the Low Pay Commission (LPC) did not intend to set out in its reports that those who were permitted to sleep could be deemed to be working when they first reported to government before the release of the 1999 regulations. The LPC recommended an allowance be paid and the NMW if they were awake for the purposes of working.
- Under the Minimum Wage provisions, a decision as to whether a person is 'working', does not need to take into account that a worker is at their employer's direction or required to follow instructions.
The full judgement can be found here
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