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Sleeping time is not working time says Court of Appeal

The social care sector is breathing a sigh of relief after the Court of Appeal in Royal Mencap Society v Tomlinson-Blake reversed previous cases and decided that only time spent awake and working should be counted as working time for the purposes of calculating the national minimum wage. 

Prior to the Court of Appeal's decision handed down on 13 July, providers were facing a multimillion pound back pay bill which threatened to push some of them to collapse.  The Court went back to the original wording of the National Minimum Wage Regulations which are clear that a worker is not 'working' if they are asleep with sufficient sleeping facilities being provided. 

We understand that Unison is intending to appeal to the Supreme Court on behalf of the workers, however for the moment at least, there is no obligation to count the full shift as working time.

Workers will be disappointed by the decision and it will particularly impact those who are lowest paid.  It is possible that the Government will consider stepping in and legislating for a 'sleeping wage' to ensure that workers are not exploited.  However with Brexit consuming the picture at the moment, it is unclear how soon that could be.

We have particular expertise in the sectors impacted by this decision as well as national minimum wage compliance in general.  Please contact Siobhan Fitzgerald, partner, to discuss your requirements.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2018. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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