Supreme Court “sleep-in” case judgment due this week

The highly anticipated “sleep- in judgment”, Royal Mencap Society v Tomlinson-Blake, will be handed down by the Supreme Court on Friday this week (19 March 2021).

This will provide clarity on the issue of whether care workers who ‘sleep in’ are entitled to the national minimum wage for time that is not spent actually performing some specific activity.

In 2016 and 2017 the care sector was plunged into uncertainty regarding National Minimum Wage (NMW) payments for sleep-in workers following an Employment Tribunal decision (and subsequent Employment Appeal Tribunal decision) that effectively changed the thinking on payment practices.  Prior to the decision, both regulations and government advice stated that ‘sleep-in’ shifts did not count as ‘time-work’ for the purposes of NMW law as people were asleep and not working.  As had been the norm across the sector for years, care workers were usually paid a flat rate for sleep-in shifts that regularly fell below NMW rates.  The decision of the tribunal caused sector uncertainty and prompted HMRC to issue guidance to providers on potential liabilities for failure to pay staff the NMW in relation to sleep-in shifts.  Subsequently, the tribunal’s decision was overturned by the Court of Appeal in July 2018 which provided relief to care providers facing uncertainty over potentially significant liabilities.  However, last year it was announced that the Supreme Court would be hearing an appeal against the landmark ruling.

The Supreme Court is due to hand down the decision this Friday and it will be eagerly awaited by Care Providers as the impact of the ruling could be very significant in terms of potential back pay liability if all time spent during sleep-ins is found to be working time.

We await the decision with interest.

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