Court of Appeal in Mencap: The end of minimum wage for sleep-ins when asleep?

Nathaniel Caiden considers today’s Court of Appeal judgment in Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad in which Caspar Glyn QC and Chesca Lord appeared for Mr Shannon.

The Court of Appeal in Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad [2018] EWCA Civ 1641were concerned with the issue of whether “sleep-in” workers were entitled to National Minimum Wage for the time asleep.  In short, it determined no and seemingly, one may think, it could mark a sea of change on the fraught issue of the National Minimum Wage (“NMW”) in the “sleep-in” context.

Brief explanation of NMW

In fact, the National Minimum Wage Regulations 1999 and 2015 have probably left many a lawyer, and judge, scratching their heads.  Therefore, before analysing the Court of Appeal’s decision it is probably worth briefly setting out the steps.

  • One first has to establish whether a worker was engaged in “time work”, “salaried hours work”, “output work” or “unmeasured work” (or a mixture of more than one of these).
  • Then, one has to establish how many hours of each of these types of “work” a worker has “worked” within a pay reference period.
  • Additionally, one also has to establish whether any periods when the worker is “available for work” or travelling that can be “treated as being working hours.”
  • The NMW must be paid for the total of those hours.

The relevant “availability” provisions for the purposes of this case are regulations 15 and 16 of the 1999 Regulations, and regulations 32 and 27 of the 2015 Regulations. They contain similar but not identical provisions and are not all repeated here, but for reference regulation 32 for the 2015 Regulations states:

“(1) Time work includes hours when a worker is available, and required to be available, at or near a place of work for the purposes of working unless the worker is at home.

(2) In paragraph (1), hours when a worker is ‘available’ only includes hours when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping.”

Somewhat unhelpfully, “work” is not defined in the Regulations.