The Department for Business, Energy & Industrial Strategy have recently updated their guidance for calculating the minimum wage to reflect the law as it currently stands following the Court of Appeal’s judgment in the joined cases of Mencap v Tomlinson-Blake and Shannon v Rampersad.
The guidance can be found at https://www.gov.uk/government/publications/calculating-the-minimum-wage
In some sectors – including, but not only, the care sector – workers are required to stay 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 when required to undertake work. Such shifts normally occur at night, but could occur during the day. If the employer provides suitable facilities for sleeping, minimum wage must be paid for time when the worker is required to be awake for the purpose of working, but not for time the worker is permitted to sleep. However, if suitable sleeping facilities are not provided then minimum wage must be paid for the entire shift.
The position is different where workers are working and not expected to sleep for all or most of a shift, even if there are occasions when they are permitted to sleep (such as when not busy). In this case it is likely minimum wage must be paid for the whole of the shift on the basis that the worker is in effect working all of that time, including for the time spent asleep.
Each case may be different depending on all of its individual circumstances, including what the contract provides and what is happening in practice. If you are unsure about the arrangements you have in relation to the National Minimum Wage you can contact the Acas Helpline on 0300 123 1100.
Unison has asked the Supreme Court for leave to appeal against the Court of Appeal’s decision that sleep-in shifts do not count as work time and therefore not subject to be paid in line with national minimum wage.
Until the decision of the Supreme Court is made, employers should follow the guidance issued by BEIS.