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  • International Workplace
  • 8 August 2018
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Carers’ ‘sleep-ins’ are not considered working time

The Court of Appeal has handed down its decision in the case of Mencap v. Tomlinson-Blake, which considered whether ‘sleep-ins’ – where employees are required to sleep at work – should be considered working time. The claimant was arguing that it was entitled to backdated pay for sleep-ins.

The Court found in favour of Mencap, that it is only time spent awake and working which is counted as working time during a ‘sleep-in’ and carers are therefore not entitled to the National Minimum Wage. 

In his written judgement, Lord Justice Underhill concluded on the general issue outlined that rather than actively working, staff on sleep-in shifts were instead classed as ‘available to work’. The National Minimum Wage is noted to apply only to time when the employee is required to be awake for the purposes of working.

Care England, which was an intervener in the case, says the successful appeal finally gives a clear steer with respect to historic liabilities for sleep-in shifts. The Court decided that sleep-ins fall into the exception as being ‘only available for work’ according to Regulation 32 and as such the National Minimum Wage (NMW) would only be payable when the person was awake and working and not while asleep. “This has always been our understanding and after years of uncertainty brought about by conflicting Employment Tribunal decisions and confusing government guidance we can at last be confident providers have the correct framework within which to make decisions on remuneration of sleep-in shifts, provided there is no Supreme Court Appeal,” said Care England.

“The government must now act speedily to give direction to ensure the original regulations are now relied upon as the basis for HMRC and employers to act. The status of the national Social Care Compliance Scheme (SCCS) and the obligations of providers registered within it must be clarified as soon as possible.”

Professor Martin Green OBE, Chief Executive of Care England, added:

“We welcome the Appeal Court ruling and hope we can now move forward, without a huge back pay liability hanging over the sector and threatening the ongoing care of thousands, to ensure we focus on getting social care services funded properly for the future.”