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Guidance on When the National Minimum Wage Should Be Paid For Sleep-In Workers

on Friday, 07 May 2021.

The Department for Business, Energy and Industrial Strategy (BEIS) has updated its guidance on how to calculate the national minimum wage (NMW) for sleep-in workers.

This follows the Supreme Court's decision on pay for sleep-in workers in Royal Mencap Society v Tomlinson-Blake and others [2021].

The BEIS guidance is included in the Working hours for which the minimum wage must be paid sub-section, under the Special situations and 'Sleep-in' shifts headings.

The guidance confirms the Supreme Court's judgment in Royal Mencap, which we previously reported on and ruled that, in most cases during a sleep-in shift workers will be merely available for work, rather than actually working, and so will only be entitled to NMW when awake for the purposes of working and not when they are permitted to sleep.

The guidance makes it clear however that, where workers are expected to perform activities for all or most of a shift and are only permitted to sleep between tasks where possible, it is likely that the NMW at least must be paid for the whole of the shift. This includes for any time spent asleep. The NMW must also be paid for the entire shift where sleeping facilities are not provided on the basis that the worker will be in effect working for their entire shift.

What Are the Exceptions of the BEIS Guidance?

The guidance stresses that each case may be different depending on individual circumstances, including what the employment contract provides and what is happening in practice, and examples are provided to illustrate how the Supreme Court's ruling in Royal Mencap might apply in practice.

For example, a worker who is expected to sleep most of the night but is required to keep open a listening ear would only be entitled to the NMW while they are awake to perform work-related tasks. A security guard is however likely to be eligible for the NMW for the entire shift, even if they would be permitted to take a nap in a chair between tasks, as they would have no suitable sleeping facilities.

Other examples include a worker who takes calls on a night shift; a worker who is woken to deal with an emergency but who is then not required; and, a worker who is woken frequently contrary to the original expectation.

Best Practice for Employers

Employers with sleep-in workers will find the BEIS guidance a helpful starting point when calculating the working hours for which the NMW must be paid. Whether or not the NMW should be paid will however depend on the worker's particular circumstances and employers will therefore need to apply the relevant principles outlined in the guidance to the particular set of facts.


For further guidance on calculating pay for sleep-in workers, please contact Lorna Scully in our Employment Law team on 0121 227 3719, or complete the form below.

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