This long-awaited judgment has been met with relief and frustration by care providers; relief from providers who feared huge claims for back-pay, and frustration from others who, based on previous case law, had already been including sleeping time in NMW calculations. The case also shines the spotlight once again on the working conditions of low-paid carers and the issue of funding for the sector.

Regulation 32 of the National Minimum Wage Regulations 2015 says:

1. Time work includes hours when a worker is available, and required to be available, at or near a place of work for the purposes of working unless the worker is at home.
2. In paragraph (1), hours when a worker is ‘available’ only includes hours when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping.

Case law over the last 20 years has indicated that night workers who were permitted to sleep when they weren’t working would be entitled to NMW for the entirety of their shift. The 2002 case of British Nursing Association v Inland Revenue for example, found that nurses who operated an overnight helpline from their homes were “working” for the purposes of the NMW throughout their shift, even though they were permitted to sleep between calls. Today’s Supreme Court decision found the BNA case to have been wrongly decided. The Supreme Court said that a clear distinction needs to be drawn between working and being available for work. On the question of what constitutes being awake for the purposes of working, Lady Arden gave examples of helping with distributing breakfast to care home residents and waiting for a call to assist.

The Mencap case relates specifically to sleep-in workers rather than “waking night” carers, who are already entitled to include all their time on duty in NMW calculations. But the Supreme Court noted that there may be circumstances where a worker might be “working” for NMW purposes even when they’re asleep, for example where the worker is having a nap between intermittent tasks.

Employers who have been including sleeping time in wage calculations but see this case as a green light to immediately reduce wage costs need to take care in making any changes to pay as a result of this decision: it could amount to a unilateral contractual variation which could result in grievances, breach of contract and constructive dismissal claims.

Although Local Authority budgets are set for 2021/22 and the position is unchanged from the Court of Appeal, we will need to see how they respond and consider their funding.

If you have any questions regarding this then please do get in touch with Martin Cheyne or Julia Gray.