Sleep in Time is not Working Time for the Purpose of the National Minimum Wage

The case lays to rest the erroneous belief that sleep-in shifts could qualify for the national minimum wage following the case of British Nursing v HMRC. In that case the Court of Appeal decided that a worker could be deemed to be ‘working’ even if the worker was not required to be awake or available to work.

The Supreme Court made the following findings on appeal:

1. For the purposes of deciding whether a person is ‘working’ under the Minimum Wage provisions, it does not matter that a worker is at their employer’s direction or required to follow instructions;
2. The Low Pay Commission had not intended that anyone who was permitted to sleep could be deemed to be ‘working’ or engaged in ‘time work’ when they first reported to government prior to the 1999 version of the Regulations;
3. In the definition of ‘time work’ the phrase “awake for the purposes of working” is composite and cannot be broken up into ‘awake’ and ‘for the purposes of working’;
4. The multi-factor test that Mrs Justice Simler set out in the EAT to determine whether someone was ‘working’ simply by being present before deciding whether they were engaged in ‘time work’, is not required under the National Minimum Wage Regulations and should not be followed;
5. If a worker is called on to respond to someone’s care needs (or for any other duties) when on a shift, that time will count as ‘time work’ and be subject to the National Minimum Wage.

The Judges unanimously decided that British Nursing v HMRC should not be followed as it was not a correct statement of the law regarding sleep-in shifts.

The Court was however divided on why this is, and so Tomlinson-Blake should not be regarded as binding on whether similar legal arguments on different facts to those in British Nursing could be raised again in respect of the home-working exception in the Regulations.