Following the Supreme Court judgement which confirmed that workers were not entitled to the National Minimum Wage (‘NMW’) whilst sleeping, the Department for Business, Energy and Industrial Strategy have released guidance on how to calculate NMW payments for sleep-in workers.
See our news on the judgement here.
The new guidance confirms that;
- Whilst workers are not entitled to NMW when they are permitted to sleep, the position is different where workers are expected to perform activities for all or most of a shift and are only permitted to sleep between tasks. Here it is likely that NMW must be paid for the whole of the shift on the basis that the worker is in effect working all of that time.
- National Minimum Wage Regulations expressly require the employer to provide suitable sleeping facilities in order for the time spent asleep not to be eligible for minimum wage purposes. Where sleeping facilities are not provided then NMW must be paid for the entire shift.
- Individual circumstances will affect whether an individual is entitled to NMW for their shift. There are various factors to be considered including what the contract provides and what is happening in practice.
Full guidance can be found here.
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