Decision of the Supreme Court - Royal Mencap Society v Tomlinson-Blake

“Sleep-In” Shift Work and National Minimum Wage

The long-standing issue of whether workers whose duties involve “sleep-in” shifts at their place of work qualify to be paid for the “sleeping time” has now been determined by the Supreme Court in the case Royal Mencap Society v Tomlinson-Blake .

The main significance of this matter, aside from the interesting legal debate as to interpretation, was the potential cost to employers (primarily in the care sector) should workers be able to raise actions for historic non-payment of salary. One estimate of the potential cost to care sector employers was £ 400 million and this could potentially have put many providers out of business. .

The Supreme Court in the Mencap case considered two conjoined cases and looked at the question of what is ‘work’ in terms of the National Minimum Wage Regulations 1999 and 2015. In particular, the Court considered whether ‘sleep-in shift time” qualified as “work’ for the purposes of the said Regulations.

Prior to the Mencap case the leading UK case was British Nursing v HMRC 2002. The decision of the Court of Appeal, in the British Nursing case, as set out by Lord Justice Buxton, was that a worker could be ‘working’ even if not required to be awake

The Supreme Court judgement of last week held that sleep-in shift time does not qualify as “work” and overturns the British Nursing view that sleep-in shifts could qualify for the national minimum wage. The decision clarifies the legal position and also overturns the previous decisions of the EAT in Burrow Down Support v Rossiter 2008 and the Court of Session in Scottbridge Construction v Wright 2003.

For clients in the care sector, we shall be preparing a more detailed note of the decision and the consequences.

If you would like further information regarding the topics discussed in this blog, please contact:

Stuart Robertson by email: srobertson@gilsongray.co.uk or by phone: 07793 821 523 / 0141 433 7752

Graham Millar by email: gmillar@gilsongray.co.uk or by phone: 07841 920 102 / 0141 530 2023

You can also visit our Employment Law Team page by clicking here. 

The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.