Sleepover exemption: At which point do sleep-in shifts stop counting as work?

XpertHR consultant editor Darren Newman looks at a recent case in which the Court of Appeal ruled that a care worker required to sleep on the employer’s premises was simply “available” for work rather than actually working, and therefore caught by the sleepover exemption in the minimum wage legislation.

The Court of Appeal has ruled in Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad and another t/a Clifton House Residential Home that those who are allowed to sleep at their workplace – ready to be woken if needed – are not working while they are asleep. The sleeping time does not therefore count towards the calculation of their national minimum wage entitlement.

It may seem to be common sense that an employee cannot be working while not awake – but I think there are good grounds to believe that the decision is wrong.

It is 20 years since the minimum wage was introduced and the reason that this issue has taken so long to reach the Court of Appeal is that, on the face of it, the legislation specifies that working time does not include time spent sleeping on a sleepover shift.

The National Minimum Wage Regulations 2015 (SI 2015/621) contain the latest version of a sleepover exception that has been included since the legislation was first introduced. Regulation 32 says that “time work”, defined in reg.30 as non-salaried work that is paid according to a specific period of time, such as hourly paid work or daily paid work, includes time when the employee must be “available” for work at or near the workplace. This prevents an employer from arguing, for example, that a shop worker stops working when there are no customers in the shop or there is no immediate task to be performed.

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It also covers “on-call” time – but only where the employee’s presence is required at or near the workplace. However, reg.32 also states that the provision applies only when the employee is “awake for the purposes of working”. The drafting is not terribly clear, but it certainly seems to say that those who are expected to sleep at work will not be seen as working while they do so.

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