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What Hours Are Considered 'Work' For Sleep-In Staff?

on Friday, 19 March 2021.

The vexed question of which hours count as 'work' for residential staff during sleep-in night shifts, for the purposes of receiving the national minimum wage (NMW), has finally reached its conclusion.

The Supreme Court has dismissed the appeals of two sleep-in workers in the case of Royal Mencap Society v Tomlinson-Blake and Shannon v. Rampersad and another (T/A Clifton House Residential Home), ruling that if a worker is permitted to sleep during a shift and is only required to respond to emergencies, the hours in question are not included in the NMW calculation for time work or salaried hours work, unless the worker is awake for the purpose of working.

How Is Working Time Calculated?

How working time, and therefore a worker's entitlement to the NMW, is calculated depends on the type of work they do. This case relates to 'salaried hours work' and 'time work', broadly those who receive an annual salary to carry out work for a set period of time and those whose pay varies by reference to the amount of time they spend working.

The laws which regulate 'salaried hours work' and 'time work' provide that time when a worker is required to be available at or near his or her employer’s place of business is included in calculating working hours, subject to the following exceptions:

  • where the worker is permitted to sleep during the shift
  • where the worker is at home

The two cases considered by the Supreme Court were concerned with the sleep exception. This provides that the time during which a worker is permitted to sleep will only be treated as working time when the worker is 'awake for the purpose of working'.

Sleep-In Workers

In the Royal Mencap Society case, the claimant was a domiciliary care support worker who worked at the private homes of two vulnerable adults. The claimant's shift rota included both day shifts, for which she received appropriate salaried remuneration, and sleep-in night shifts. During the sleep-in night shifts, she was expected to intervene when required and respond to calls for help. She could otherwise sleep throughout. The need to intervene was real but infrequent (6 occasions over the 16 months before the Employment Tribunal hearing). On intervening, the first hour was not additionally remunerated, whilst any further hours were paid for in full.

In the Shannon case, the claimant worked as an on-call night care assistant and was offered accommodation in a studio within the respondent care home. During the claimant's night shift, he had to respond to requests for assistance by the night care worker on duty at the same time but was also permitted to sleep when the need to intervene was absent.

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What Was The Decision?

In finding against the claimants in these cases, the Supreme Court has made it clear that workers who are paid by reference to the time they work will not be paid for time spent sleeping on a night shift. It is important to note that the decision relates to individuals who could be called on in an emergency. It may not apply directly to other arrangements, for example a more structured working pattern during a night shift.

What Is Best Practice For Employers?

The Supreme Court's ruling will be welcomed by care homes and other personal care charities in particular. An obligation to pay the national minimum wage throughout a night shift would have had a significant impact on the cost of care.

Our best practice points for employers following the Court of Appeal's ruling still apply:

"As a starting point it will still be important to identify those staff who are working when required to be present on site, as distinct from merely available to work.

  • Staff who are working either at home or at their workplace (even if work is intermittent with downtime) - all time will count for NMW.
  • Staff who are available to work at home - no time at home will count for NMW.
  • Staff who are available to work at their workplace with arrangements to sleep - only time when awake and responding will count for NMW.

In order to ensure compliance with these rules, employers should arrange for a record to be kept of hours worked over night and ensure either that staff are paid for these hours, or that their total remuneration is greater than the national minimum wage when these hours are taken into account.

It is also important to note that whilst this is a helpful decision in relation to claims for pay under the national minimum wage, it does not affect the Working Time Regulations which are based on different definitions."


For further information on working hours and NMW, please contact Michael Halsey in our Employment Law team on 07554 432 829, or complete the form below.

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