The Supreme Court has confirmed that time a worker is required to sleep on-site does not count towards national minimum wage (NMW) calculations.
The court has emphasised that each case does fall on its facts. The judgment makes me point that not every worker who is permitted to take a nap between tasks is a sleep-in worker; there must be an intention that they will sleep during the sleep-in provision.
Where this intention exists, the time spent sleeping will not count towards NMW working hours, only any time spent actually working, for example, responding to an emergency.
The key differentiator in any assessment will be the difference between working, as against merely being available for work. The court summarised as follows:
‘If the employer has given the worker the hours in question as time to sleep and the only requirement on the worker is to respond to emergency calls, the worker’s time in those hours is not included in the NMW calculation for time work unless the worker actually answers an emergency call. In that event the time he spends answering the call is included. In this aspect of the result, I agree with the illuminating analysis of the Court of Appeal. It follows that, however many times the sleep-in worker is (contrary to expectation) woken to answer emergency calls, the whole of his shift is not excluded for NMW purposes. Only the period for which he is actually awake for the purposes of working is included.’
This is a great result for care providers who were facing very significant potential claims amounting into many hundreds of thousands of pounds (if not millions).
For any queries relating to this case or NMW more generally, please contact us on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.