The Court of Appeal handed down judgment this morning in the combined appeals of in Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad (full judgment available here).
In the sole judgment, Lord Justice Underhill has overturned a substantial body of case law and found that “sleep-in” residential care workers are only entitled to the National Minimum Wage when they are awake and “actually working.” When they are asleep, they are, he held, simply “available for work” and not entitled to be paid the NMW.
Previous jurisprudence, which has been adopted in BEIS Guidance and HMRC enforcement policy, was that in some circumstances, such as where there was a statutory requirement for a worker to be present or they would face discipline if they left the workplace, individuals could be “working” for the purposes of entitlement to the NMW even if they were allowed to sleep.
The Court of Appeal has disapproved the established “multi-factorial” approach in favour of a “bright line”, “common-sense” approach that “sleep-in” care workers who are “expected to sleep for most of the night but may be woken if required to undertake some specific activity” are only entitled to the NMW while awake performing those activities.
For a more detailed analysis see the blog on this decision.