Employment: Remuneration

The appellant employees, a care support worker and an on-call night care assistant, were contractually obliged to spend the night at or near their workplace on the basis that they were expected to sleep for all or most of the period, but might be woken if required to undertake some specific activity (sleeping in). They issued proceedings, contending that the sleeping in time was salaried hours’ work for national minimum wage (NMW) purposes. In the case of the first employee, the judge found in her favour and the employer successfully appealed. In the case of the second employee, the judge found for the employer and the employee unsuccessfully appealed. On appeal by the employees, the Court of Appeal, Civil Division, decided that the only time that counted for NMW purposes was time when the worker was required to be awake for the purposes of working. The Supreme Court agreed with the Court of Appeal. Accordingly, the appeals were dismissed.

The appeals concerned an employee care support worker and an employee on-call night care assistant who were contractually obliged to spend the night at or near their workplace on the basis that they were expected to sleep for all or most of the period, but might be woken if required to undertake some specific activity (sleeping in). They had issued proceedings, contending that the sleeping in time was salaried hours’ work for national minimum wage (NMW) purposes. In the case of the first employee (TB), the judge found in her favour and the employer (Mencap) appealed. In the case of the second employee (S), the judge found for the employer (Rampersad) and S appealed. The issue for determination was whether the entirety of the period spent on the premises under sleeping in arrangements had to be taken into account in calculating an employer’s obligations under the National Minimum Wage Regulations 1999, SI 1999/584 (the 1999 Regulations) and the National Minimum Wage Regulations 2015, SI 2015/621 (the 2015 Regulations), or only such time as was spent actually performing some specific activity.

The Court of Appeal, Civil Division, held that sleepers-in were to be characterised for the purpose of the relevant Regulations as available for work, within the meaning of reg 15(1) of the 1999 Regulations/reg 32 of the 2015 Regulations, rather than actually working, within the meaning of reg 3 of the 1999 Regulations/reg 30 of the 2015 Regulations, and so fell within the terms of the sleep-in exception in reg 15(1A) of the 1999 Regulations/reg 32(2) of the 2015 Regulations. The court was not bound by authority to come to any different conclusion. Accordingly, it held that the only time that counted for national minimum wage purposes was time when the worker was required to be awake for the purposes of working. Consequently, the appeal with respect to TB was allowed, but S’s appeal was dismissed.

TB and S appealed.

How the number of hours in their case were to be calculated for the purposes of the NMW.

Having regard to the purpose of reg 32(2) of the 2015 Regulations, which like its predecessors, was to implement the recommendation of the Low Pay Commission about sleep-in shifts, the contemplation of the regulations in relation to time work was that a sleep-in worker could not actually be working for NMW purposes if the arrangement was that he was to be present and sleep on the premises during his hours of work subject only to emergency calls. Accordingly, reg 32(2) should be treated as applying to all such workers doing time work (see [42] of the judgment).

Applying that approach, the special rule for sleep-in workers (reg 32(2) of the 2015 Regulations/reg 15(1) or, later, reg 15(1A) of the 1999 Regulations) was quite clear. The basic proposition was that they were not doing time work for the purposes of the NMW if they were not awake. However, the Regulations went further than that and stated that not only were they not doing time work if they were asleep: they were also not doing time work unless they were awake for the purposes of working. So, it was necessary to look at the arrangements between the employer and the worker to see what the worker was required to do when not asleep but within the hours of the sleep-in shift (see [44] of the judgment).

If the employer had given the worker the hours in question as time to sleep and the only requirement on the worker was to respond to emergency calls, the worker’s time in those hours was not included in the NMW calculation for time work unless the worker actually answered an emergency call. In that event, the time he spent answering the call was included. It followed that, however many times the sleep-in worker was (contrary to expectation) woken to answer emergency calls, the whole of his shift was not included for NMW purposes. Only the period for which he was actually awake for the purposes of working was included. To be available for work a person should be both awake and awake for the purposes of working and not simply awake for his own purposes. That meant that the hours that he was permitted to sleep did not form part of the calculation of his hours for NMW purposes (unless he was woken for work reasons)(see [45] of the judgment).

The sleep-in worker who was merely present was treated as not working for the purpose of calculating the hours which were to be taken into account for NMW purposes and the fact that he was required to be present during specified hours was insufficient to lead to the conclusion that he was working (see [73] of the judgment).

The Court of Appeal was correct for the reasons it had given in allowing the appeal in TB’s case and in dismissing it in relation to S (see [65] of the judgment).

British Nursing Association v Inland Revenue (National Minimum Wage Compliance Team) [2002] EWCA Civ 494 overruled; Scottbridge Construction Ltd v Wright [2003] IRLR 21 overruled; Rossiter v Burrow Down Support Services Ltd UKEAT/0592/07/LA overruled; Walton v Independent Living Organisation [2003] EWCA Civ 199 approved.

Sean Jones QC, Andrew Edge and Leo Davidson (instructed by UNISON Legal Services, London) for TB.

Caspar Glyn QC and Chesca Lord (instructed by Thomas Mansfield Solicitors) for S.

David Reade QC, Niran de Silva QC, Georgina Leadbetter (instructed by Simons Muirhead & Burton, London) for Mencap.

Judy Stone, Christopher Parkin (instructed by Morrison & Foerster LLP, London) for Rampersad.

Anne Redston (instructed by the Local Government Association Legal Department) for the intervener.

Neneh Munu - Barrister.