Getting Paid to Sleep the Dream Job!

Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad and another (t/a Clifton House Residential Home) [2018] IRLR 932 CA

The Court of Appeal heard two appeals together because they concerned the same issues.

The issue for the CoA was whether or not employees who sleep-in work and only carry out duties if required engage in "time work" for the full duration of their night shift or only when they engage in required activities. Further, whether or not those workers who sleep in are entitled to the national minimum wage for the full duration they are at work, or only for the period when they are carrying out such required duties.

The issue to be determined was whether the entirety of the period spent on the premises under such arrangements should be taken into account when calculating an employer's obligations under the National Minimum Wage Regulations or whether such time spent actually performing some specific activity was time covered by such Regulations. At the previous hearing the EAT ruled in favour of the Claimant and the Respondent appealed.

The CoA held that sleep-in shifts do not count as "actual work" for the purposes of the National Minimum Wage legislation. The Court found that the Low Pay Commission recommendations were fundamentally important to the appeal and stated that they had considered them extensively in reaching their conclusion.The Court accepted that it was clear the drafting of the legislation was such that there are two separate kinds of time work: actual work and availability for work under Regulation 32.

Regulation 32 provides:

“(1) Time work includes hours when a worker is available, and required to be available, at or near a place of work for the purposes of working unless the worker is at home.

(2) In paragraph (1), 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.”

The Court allowing the appeal, held that “sleepers-in” were to be characterised for the purpose of the Regulations as available for work, within the meaning of Regulations, as oppose to actually working, and so fell within the terms of the "sleep-in exception" found in Regulation 32. The ruling essentially upholds what has been happening for many years; only time spent working on required activities (actual work) will count when calculating time for the National Minimum Wage Regulations.

Following the CoA Ruling the Supreme Court granted Ms Tomlinson-Blake who is supported by Unison, leave to appeal the CoA's decision to their court. The case is expected to be heard by the Supreme Court in February 2020.