Sleeping on the Job? A Right to be Paid?

Introduction

Many employees, by the very nature of their work, are required to sleep at their place of employment. Very often, these can be emergency or frontline workers who are required to be nearby, should a situation arise that requires their immediate attention. However, should they be paid for the time they are asleep?

The UK Supreme Court recently deliberated on this matter, finding that relevant employees should only be paid for the hours they are awake, attending to their duties.

Right to be Paid during 'Sleeping Hours'

Ms Tomlinson-Blake was a highly qualified care support worker who provided care to two vulnerable adults at their own home. When she worked at night, she was permitted to sleep but had to remain at her place of work. She had no duties to perform except to “keep a listening ear out” while asleep and to attend to emergencies, which were infrequent. For each night shift, she was paid an allowance plus one hour’s pay at the NMW rate. She brought proceedings to recover arrears of wages on the basis that she was entitled to be paid the NMW for each hour of her sleep-in shift. Her work was time work.

The employment tribunal (the “ET”) and, on appeal, the employment appeal tribunal (the “EAT”) found that Mrs Tomlinson-Blake was not merely available for work but actually working throughout her shift, even when asleep. Therefore each hour of her sleep-in shift had to be included in the NMW calculation.

Right to be Paid during 'Working Hours'

The UK Supreme Court  concluded that the meaning of the sleep-in provisions in the National Minimum Wage Regulations 1999 and National Minimum Wage Regulations 2015 is that, if the worker is permitted to sleep during the shift and is only required to respond to emergencies, the hours in question are not included in the National Minimum Wage calculation for time work or salaried hours work unless the worker is awake for the purpose of working.

Conclusion

This case rested on certain very specific definitions contained within the UK legislation. Although not directly applicable to this jurisdiction, the case may be a useful reference for relevant parties in similar payment-of-wages disputes.

Further Information

For further information, please contact the author of this article, Barry Crushell.