17 July 2018
The Court of Appeal has held that carers who sleep at a client's home, technically being 'on call', are not entitled to the minimum wage while they are asleep.
This issue was considered by the Court of Appeal in MenCap v Tomlinson-Blake.
The National Minimum Wage Act 1998 and Regulations made under the Act in 2015 contain complex rules about calculating the number of hours worked by a worker. This is part of the calculation to identify the worker's average hourly pay to then assess whether or not it is at or above the statutory minimum.
The Court of Appeal considered the issue as a matter of principle and concluded that workers who carry out a “sleep over” will only be entitled to have the hours when sleeping counted for minimum wage purposes when the worker is (and is required to be) awake for the purpose of performing some specific activity or duty.
This is an important judgment which potentially alters the approach the law takes in this area.
The full judgment can be found here: Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad
To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.