Court of Appeal Rules On Pay For Sleep-In Carers

The Court of Appeal handed down a judgment finding it is only time spent awake and working during a sleep-in that counts as working time for National Minimum Wage purposes. Care workers who sleep overnight at a client’s home are not entitled to the national minimum wage while they are sleeping, the Court of Appeal has ruled.

The Court accepted that it was clear the drafting of the National Minimum Wage Regulation was such that there are two separate kinds of time work – actual work and availability for work under Regulation 32.

 Regulation 32 provides:

“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. 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 distinguished the leading case of British Nursing Association where the workers were actually working as they were essentially delivering the same service at night as they did in the daytime. The fact that there were significant slack periods did not mean they weren’t working.

 The Court of Appeal stated:

“There must be many kinds of work where specific tasks only come up intermittently but where for the purpose of the Regulations a worker remains “actually” working even during periods where they have nothing to do.”

In this case what had to be considered was the rate of pay to which the worker was entitled where under their contract they were obliged to spend the night at or near their workplace on the basis that they are expected to sleep for all or most of the period but may be woken if required to undertake some specific activity.

The issue in this appeal was whether the whole of the period spent on the premises under such arrangements must be taken into account in calculating an employer's obligations under the National Minimum Wage Regulations or only such time as is spent actually performing some specific activity.

The court allowed the appeal, holding that sleepers-in were to be characterised for the purpose of the NMW Regulations as available for work, within the meaning of the regulation rather than actually working and so fall within the terms of the sleep-in. The court was not bound by authority to come to any different conclusion. The result is that the only time that counts for national minimum wage purposes is time when the worker is required to be awake for the purposes of working.