It has now been over six weeks since the Supreme Court handed down their judgment in the Mencap “Sleep-in” case (read our ebriefing here). The issue at the heart of the matter has always been the correct interpretation of the National Minimum Wage (NMW).
With that in mind, the Government last week updated their guidance on what constitutes working hours for the purposes of the payment of NMW. It sets out that sleep-in workers are contractually obliged to spend a shift at or near their workplace, expected to sleep for all or most of that shift and woken if required to undertake a specific work activity. It confirms NMW is only payable in those scenarios when the employee/worker is awake for the purposes of working. The guidance then provides some examples. The guidance can be found here and the examples relevant to sleep-ins are found in the category marked “Special situations”.
There are two points which are worth highlighting. Firstly, the guidance highlights the importance of considering what the contract of employment says. In many cases, provisions regarding sleep-ins are not carefully drafted and we have often seen contracts reference sleep-ins as work which can create uncertainty regarding the contractual position in relation to sleep-in pay (regardless of the NMW position).
Secondly, one example given in the guidance highlights that where a sleep-in worker is routinely disturbed over a period of time, the nature of the shift may change, thus all hour’s count. Accordingly, providers will need to continue to monitor the number of disturbances carefully and consider replacing the sleep-in shift with a waking night where there is a pattern of regular disturbance.
Since the decision, we are pleased to say there has not been a widespread change to existing payment methods for sleep-ins. Most providers report that their commissioners have not yet attempted to reduce what they are paying for sleep-in work but at the same time neither have they been given any confidence about how commissioners will approach payment in the longer term. With the Low Pay Commission currently consulting in relation to its NMW recommendations for 2021, our view remains that their recommendations should include a minimum rate for sleep-ins.
Each case may be different depending on individual circumstances, including what the contract provides and what is happening in practice.