The law states that employees and workers are entitled to be paid for the work that they do and details the minimum amount that they should be paid for that work. Few people would disagree with this as a principal, but the question of what actually constitutes as ‘work’ has proved difficult to define.

In April 2018, the Employment Appeal Tribunal (‘EAT’) considered three separate cases concerning the central question of whether a sleeping individual is ‘working’ and therefore entitled to be paid. The EAT concluded that there was no simple answer and that a multi-factorial test should be adopted in each case. Despite this being a complex area of law, some still felt that the outcome failed to provide the clarity individuals and organisations alike were seeking.

Inevitably, this same question came before the Court of Appeal (‘Court’) in the case of MenCap –v–Tomlinson-Blake. In its judgment, dated 13 July 2018, the Court concluded that carers who sleep at a client’s home, and are technically ‘on call’, are not working and therefore are not entitled to receive the national minimum wage when they are asleep.

Referring to the National Minimum Wage Act 1998 and the National Minimum Wage Regulations 2015, the Court determined that workers sleeping under this type of arrangement will only be entitled to have sleep-in hours counted for national minimum wage purposes, if they are awake and performing specific tasks or activities.

This is an important decision for any organisation providing 24-hour services, and particularly for those in the care and charity sectors for which the question of working time has been a key issue. If would like to discuss any of the matters raised in this article, please contact Debbie Sadler on 01494 478671 or email