Court of Appeal ruling on back-pay for sleep-in shift workers

The Court of Appeal (CA) has reversed an Employment Tribunal judgment against Mencap, which ruled that sleep-in shift workers should be paid the full minimum wage instead of a flat-rate for each shift, which is common practice in the sector. The CA said that the National Minimum Wage (NMW) Regulations were seeking to implement the recommendations of the Low Pay Commission, which included that providers should be able to pay a flat rate in respect of sleep-ins as long as when workers are awake and working, that they are paid the NMW. The CA concludes that it is only the time spent when the worker is awake and working during a sleep-in that counts as working time for NMW purposes.

Charities that provide sleep-in shift workers will need to consider whether the judgment covers the organisation’s specific sleep-in arrangements. It is understood that HMRC has written to social care providers saying that they can suspend self-assessments of potential back-pay liability pending further advice from HMRC.

There is a possibility that permission to appeal will be sought, within 28 days of the Court of Appeal’s ruling, from the Supreme Court.