Payment for Sleep-In Shifts

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Payment for Sleep-In Shifts

Payment for Sleep-In Shifts

In a judgment released on 13 July 2018 it was clarified that workers who ‘slept-in’ at their place of work, while they were on call were not entitled to be paid the National Minimum Wage (NMW).

The case was Royal Mencap Society v Tomlinson-Blake [2018] (“Mencap”), which occurred after the Royal Mencap Society brought an appeal against a decision by the Employment Appeal Tribunal (“EAT”) that the period spent on a premises under ‘sleeper-in arrangements’ must be paid at NMW. The Court of Appeal ruled that sleepers-in were to be characterised for the purpose of the NMW Regulations as “available for work” rather than actually working. This meant that they fell within the terms of the sleep-in exception in regulation 15(1A)/32(2). Referring to the claimant, it was held that “only those hours during which she was required to be awake for the purpose of working count for NMW purposes”.

This ruling seems to contradict some of the decisions made by the European Court of Justice (ECJ), such as Ville de Nivelles v Matzak [2018] (“Matzak”) and Landeshauptstadt Kiel v Norbert Jaeger [2003] (“Jaeger”). In Matzak, a Belgian case from February 2018, it was held that a part-time fire-fighter could claim payment for the time during which he was on-call to respond to an emergency. The fire-fighter, Matzak, could stay at home whilst he was on-call, but he had to be ready for work with only eight minutes notice. It was decided that this notice period was so short that it constrained Matzak’s ability “to devote himself to his personal and social interests”, and that the need for him to be physically present differentiate the case from situations when an on-call worker was only expected to answer the phone.

Jaeger is a case from September 2003, in which it was held that time spent by a doctor working in a hospital on an on-call basis constitutes working time in its entirety, even if a place to sleep is provided by the employer. This was because the doctor was required to be on-call at a specific place (the hospital) and was not just on standby outside the hospital premises.

These cases seem to have largely similar circumstances to Mencap. The worker in Mencap also needed to be physically present at the house where the care arrangements were taking place, and it could be argued that her ability to devote herself to her personal and social interests was also affected by this requirement. Therefore the decision made in Mencap doesn’t seem to be supported by the previous case law in the ECJ.

The ramifications of Mencap are huge for the care-giving industry. It was decided that, workers on sleep-in shifts are not entitled to the NMW for time spent sleeping, so an estimated £400 million in back payments will not need to be found to pay them. The Chair of the Royal Mencap Society (the “Society”) Derek Lewis, highlighted this after the judgment was made, stating that “the prospect of having to make large unfunded back payments had threatened to bankrupt many providers”. However, he did also point out that the Society had “been paying for sleep-ins at a higher rate for over a year now” and that they intended to continue with this policy.

On the other hand the Trade union, Unison, has claimed that the judgement may cause care workers to leave the profession due to low sleep-in payments. Unison’s general secretary, Dave Prentis, called the decision “a disgrace”. Unison has made a statement making clear that they are considering a further appeal to the Supreme Court, so there may yet be serious consequences for the care-giving industry.

For more information on this topic or if you have any employment issues we might be able to help with, please contact Millie Kempley, or you can give us a call on 0345 070 6000.