Government updates official minimum wage sleep-in guidance

The Department of Business, Energy and Industrial Strategy (BEIS) have issued updated guidance to reflect the ‘Mencap’ case with regard to sleep-in shifts.

In our recent news piece,  we looked at the Court of Appeal decision in the case of Mencap v Tomlinson-Blake and considered what the impact of it was on HMRC’s Social Care Compliance Scheme.

The Department of Business, Energy and Industrial Strategy (BEIS), who are in charge of setting the minimum wage rules (as opposed to HMRC, who are strictly, only in charge of enforcing the rules) have now issued updated ‘Calculating the minimum wage’ guidance  to reflect the ‘Mencap’ case. This provides much needed clarity.

It says:

“Sleep-in” shifts

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.

The Supreme Court
This guidance reflects the law as it currently stands, in particular as determined by the Court of Appeal’s judgment in the joined cases of Mencap v Tomlinson-Blake and Shannon v Rampersad ([2018] EWCA Civ 1641). If the Supreme Court considers the appeal being made, it might issue a judgment which changes the circumstances in which national minimum wage is due for sleep-in shifts.  Any judgment is unlikely to be issued before 2019 and possibly not until 2020.

Whilst any challenge in the Supreme Court is ongoing, employers must continue to comply with the law as it currently stands.

(27-11-2018)