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Under the National Minimum Wage Regulations 2015, a worker may be treated as working if they are available at or near a place of work for the purpose of doing such work.

However, this does not apply where the worker sleeps by arrangement at or near a place of work and is provided with suitable facilities for sleeping. In this scenario, the employee will only be working when they are awake for the purposes of working.

The two employees were in the following circumstances:

  • Mrs Tomlinson-Blake had no specific tasks during a shift but was obliged to remain at the workplace (a private home) and to intervene if this became necessary during the night. She was permitted to sleep.
  • Mr Shannon was an on-call night care assistant in a residential care home. He was provided with free accommodation in a staff flat and was paid £90 per week. He was required to be in the flat from 22:00 until 07:00 and to respond to any request for assistance but could sleep if not required.

The Supreme Court found that a sleep-in worker is not doing time work if they are not awake for the purpose of working. If the worker is expected to answer emergency calls during the shift, the worker’s time within those hours is not included in the calculation for time work unless the worker actually answers an emergency call.

This ruling can be contrasted with the Court of Appeal’s decision in British Nursing Association -v- Inland Revenue (National Minimum Wage Compliance Team) [2002] EWCA Civ 494, in which it was held that nurses providing a night service by telephone from home were doing actual work throughout the whole shift, and were not merely available for work between calls. The Supreme Court decision does not necessarily overturn British Nursing as each case will turn on its own facts. If night-time calls are so frequent that there is no realistic opportunity for sleep then a court may well take a different view and decide that waiting to respond to a call amounts to being awake for the purpose of working.

A link to this case can be found here.

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