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Employment Law Update: Employee payment rights during sleepover shifts


The Court of Appeal has recently had to decide whether two employees should be paid the National Minimum Wage for being asleep. 

The two employees in question, Mrs. Tomlinson-Blake and Mr. Shannon, were Care Workers respectively employed by the Royal Mencap Society and Clifton House Residential Home.  Under their Contracts of Employment, both were obliged to spend the night at or near their places of work.  In reality, they were expected to be asleep for the majority of the night, but had to be on call to be woken up and available to assist if required. 

Mrs. Tomlinson-Blake was paid a fixed sum by Mencap for sleeping over and being on call, plus further sums if she was actually woken up and had to work for more than one hour.

Mr. Shannon also received a fixed sum from Clifton House, but was provided with free accommodation all year round as compensation for the occasions when he was woken up and had to work. 

Both Mrs. Tomlinson-Blake and Mr. Shannon argued that they were entitled to the National Minimum Wage for the entirety of their sleepover shift, and not just for the times when they were awake and had to work.

In the first instance, the Employment Tribunals agreed with them both.  However, their employers were unhappy with these decisions and appealed to the Employment Appeal Tribunal.  At that stage, the Employment Appeal Tribunal still agreed with Mrs. Tomlinson-Blake, but disagreed with Mr. Shannon.  Mrs. Tomlinson-Blake’s employer remained unhappy and appealed the matter to the Court of Appeal, as did Mr. Shannon. 

The Court of Appeal ruled against both employees and found that although they were available for work during their sleepover shift, they were not actually working.  Therefore, they should only receive the National Minimum Wage when they were awake and actually working.  The employees were not entitled to the National Minimum Wage when they were asleep and only available to work. 

Employers in the care sector are delighted with this decision, but Trade Unions who believe Care Workers already endure poor pay and employment conditions are not. 

Please note that each case of this nature must still be decided on its individual facts, so if you have a similar query, or indeed related to any aspect of HR or employment law, please contact Jonathan Moreland (jmm@swinburnemaddison.co.uk) or Sharney Randhawa (shr@swinburnemaddison.co.uk), or call 0191 3842441.

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