• GL
Choose your location?
  • Global Global
  • Australia
  • France
  • Germany
  • Ireland
  • Italy
  • Poland
  • Qatar
  • Spain
  • UAE
  • UK

National Minimum Wage: Supreme Court unanimously dismisses "sleep-in" shift appeals

19 March 2021
The Supreme Court in the joined appeals of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad has dismissed the appeals of Mrs Tomlinson-Blake and Mr Shannon, finding that 'time' when workers are expected to sleep and given facilities to do so does not count towards the National Minimum Wage (NMW).  


The outcome of this appeal is a significant issue for the care sector as the ability of many care sector organisations to afford to pay the NMW for a night-shift rather than a lesser fixed allowance, is not possible.  

The appeals relate to the calculation of the NMW for the time spent by two care workers on "sleep-in" shifts.  The individuals had an arrangement whereby they were permitted to sleep at or near their place of work. The appeals are in respect of "salaried hours work" and "time work". One employee was salaried and the other was hourly paid. Both undertook sleep-ins. In general, time when a worker is required to be available at or near his or her employer's place of business for the purposes of doing time work is included in calculating time work and salaried hours work but there are exceptions. This case considered the sleep-in exception.  

What is the sleep-in exception? Employers can take advantage of the sleep-in exception where an arrangement is made for the worker to sleep and is given facilities for doing so. Workers on sleep-in shifts will only be entitled to have their hours count for NMW purposes if they are, and are required to be, awake for the purpose of working.  

Mrs Tomlinson-Blake was successful at the Employment Tribunal and the Employment Appeal Tribunal in asserting that time spent on a sleep-in shift should count towards the NMW. Mencap appealed to the Court of Appeal and were successful. The Court of Appeal found that "Sleepers-in" are "available for work" rather than "actually working" and so fall within the sleep-in exception under the NMW legislation. Mr Shannon's case was based on similar facts and the Court of Appeal found in favour of the employer. Mrs Tomlinson-Blake and Mr Shannon appealed to the Supreme Court.

The Supreme Court

The appeals by Mrs Tomlinson-Blake and Mr Shannon were dismissed. The Supreme Court gave weight to the recommendations of the Low Pay Commission that sleep-in workers should receive an allowance and not the NMW unless they are awake for the purposes of working. The Court concluded 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 NMW calculation for time work or salaried hours work.  Such hours should only be included when the worker is awake for the purpose of working.  The entire shift should not therefore be taken into account for this purpose. The difference in being hourly paid or salaried did not matter.

It is worth noting that Lord Kitchen emphasises the importance of reading the legislation in a holistic way in order to avoid error. When analysing case law and agreeing with a previous judgment of Lord Underhill's, Lord Kitchen goes on to confirm:

" ..it would not be a natural use of language, in a context which distinguishes between actually working and being available for work, to describe someone as working when she is positively expected to be asleep (and, I would add, may well be asleep) throughout all or most of the relevant period."


This decision will come as a welcome relief for employers in the care sector. As highlighted above, the affordability of paying the NMW for sleep-in shifts is questionable for many care sector organisations. Employers would not only have had to budget for the increased cost going forward, but would also have been at risk of back pay claims of up to six years for a civil claim (two years for an unlawful deduction from wages claim in the Employment Tribunal).

This case clarifies and simplifies the position and is a final decision.

The legal framework surrounding the NMW is notoriously complex and remaining compliant is no easy task.  Many employers have inadvertently fallen foul of the law by committing a technical breach. Any breach of the NMW can have significant consequences for employers with the "name and shame" regime and HMRC's enforcement powers. A small breach can have serious repercussions, from negative publicity to substantial fines. Whether managing employee queries or navigating HMRC audits, we can help support you with the challenges presented by the NMW.  

If you need any assistance with the issues raised in this update please do not hesitate to get in touch. 

Further Reading

We use cookies to give you the best user experience on our website. Please let us know if you accept our use of cookies.

Manage cookies

Your Privacy

When you visit any web site, it may store or retrieve information on your browser, mostly in the form of cookies. We mainly use this information to ensure the site works as you expect it to, and to learn how we can improve the experience in the future. The information does not usually directly identify you, but it can give you a more personalised web experience.
Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change permissions. However, blocking some types of cookies may prevent certain site functionality from working as expected

Functional cookies


These cookies let you use the website and are required for the website to function as expected.

These cookies are required

Tracking cookies

Anonymous cookies that help us understand the performance of our website and how we can improve the website experience for our users. Some of these may be set by third parties we trust, such as Google Analytics.

They may also be used to personalise your experience on our website by remembering your preferences and settings.

Marketing cookies

These cookies are used to improve and personalise your experience with our brands. We may use these cookies to show adverts for our products, or measure the performance of our adverts.