• HMRC has removed the “sleeping  between duties” section and replaced it with “sleep-in shifts”
  • HMRC acknowledges the outcome of the Mencap case outlining that sleeping workers are not entitled to the NMW while they are asleep
  • If employers provide suitable facilities for sleeping, NMW must be paid for time when the worker is required to be awake for the purpose of working

On 8th November the Department for Business, Energy and Industrial Strategy updated the National Minimum Wage: Calculating Minimum Wage guidance to reflect the Mencap v Tomlinson-Blake and Shannon v Rampersad ([2018] EWCA Civ 1641) decision regarding sleep in shifts.

The Court of Appeal for the Mencap case ruled that workers who were sleeping during their shift are technically not ‘on call’ and are therefore not entitled to NMW.

The previous section in the NMW guidance titled ‘sleeping between duties’ has been changed to ‘sleep-in shifts’. The previous version of the guidance focused on an employer ascertaining whether a worker is subject to work related responsibilities whilst they are asleep, to the extent they could be deemed to be working. If it was deemed that the worker was found to be working whilst asleep they would be entitled to the minimum wage.

This section has been removed as it appears that the focus has changed from ‘is the worker subject to work related activities whilst they are asleep?’ to ‘are suitable sleeping facilities provided by the employer?’

Government also removed their example of when a worker is likely to be entitled to minimum wage.

Government has constantly changed their guidance regarding sleeping workers:

Guidance Date Government Stance
September 2008 Time when the worker is permitted to sleep and is not working will not be treated as time where NMW is payable.
December 2013 Workers are not entitled to NMW while they are on standby or on call and are asleep or entitled to sleep.
February 2015 Working time includes time: at work and under certain work-related responsibilities even when workers are allowed to sleep (whether or not a place to sleep is provided)
April 2017 Workers may be found to be working whilst asleep if there is a statutory requirement for them to be there and so NMW is due for the entire sleep-in shift.
July 2018 Periods where a worker is not working but is available for work and are allowed to sleep does not count towards working time so NMW is not due.
November 2018 Sleep in shifts do not count towards minimum wage if suitable sleeping conditions are provided.

 

If a worker has been provided suitable facilities for sleeping, the minimum wage must be paid for the whole time that the worker is awake but not for the time that they are sleeping. If suitable sleeping facilities are not provided, the worker must be paid minimum wage for the whole of the shift.

The definition of suitable sleeping facilities is not defined in the minimum wage guidance.

Employers should follow a process to assess their potential minimum wage liability.

  1. Assess whether you provide suitable sleeping facilities for your workers during sleep in shifts.
  2. Work out the hours the worker was awake and the number of hours they were asleep during a shift. If there is an incident, there will need to be a process to record the time spent awake and working.
  3. Calculate the minimum wage for the time spent awake. Include sleeping hours if you do not provide suitable sleeping facilities. Exclude sleeping hours from the calculation if you do provide suitable sleeping facilities.
  4. If what you actually paid the workers for that period is less than minimum wage, there is a minimum wage liability. If you have a minimum wage liability you should consider the Social Care Compliance Scheme (‘SCCS’) to avoid penalties. See our previous news describing the scheme here.

 

Minden U.K. Limited use Aspire Business Partnership LLP. This firm provide Minden U.K. Ltd with practical and commercially sound advice in relation to all aspects of compliance, business strategy and conflict resolution. Original article can be found on Aspire’s website:

https://www.aspirepartnership.co.uk/News/3221/sleep-in-shifts-minimum-wage-calculation-guidance-2018-has-been-updated