Warrington employment solicitor says employers can breathe a sigh of relief on issue of National Minimum Wage – at least for now.

August 10, 2018

A Cheshire employment lawyer has said that a court decision on the National Minimum Wage (NMW) will come as welcome news to many employers, following an important Court of Appeal ruling.

The case of Royal Mencap Society v Tomlinson-Blake concerned whether workers who ‘sleep-in’ (i.e. they are contractually obliged to spend the night at or near the workplace on the basis that they are expected to sleep for most or all of the period, but may be woken to undertake some specific activity) were entitled to be paid the NMW for the hours they slept.

Sleep-in roles are common in the care sector, as in this appeal, which involved two joined cases following earlier tribunal decisions on the same issue. In essence, the claimants were accommodated on site where they were permitted to sleep but still remain available for work during certain periods .

The court ruled that the workers in this case were to be regarded as being ‘available’ for work rather than actually ‘working’, and were not, therefore entitled to the NMW.

Latham Parry, partner and head of employment law at Warrington-based Watsons Solicitors,which represents both employees and employers said: “The Court of Appeal’s decision was eagerly anticipated by many employers who rely on ‘sleep-in workers’, particularly those which operate in the social care sector.

“If the claimants were found to have been entitled to the NMW for sleeping at work, it could have triggered a number of claims for back-pay, opening the floodgates and putting care providers and other employers who rely on sleep-in workers under serious financial pressure.

“In this case, the court ruled that the claimants were only entitled to payment of the NMW for the hours they were awake and performing tasks as required.

“However, there may be occasions when workers who are regularly asked to work through a designated sleep-in shift may still be entitled to pay.

“There can be many issues in relation to pay which can cause uncertainty or confusion for employers and employees. I would urge anyone with any queries about pay to contact an employment law solicitor for advice.”

The decision was made following analysis of regulation 32 of The National Minimum Wage Regulations 2015, which states:

“(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.”

Latham added: “However, it seems likely that this case will be appealed to the Supreme Court, in which case some employers may still have cause for concern.”

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