Sleep-in Shifts and the National Minimum Wage: 3PB Barrister Joe England succeeds for national partnership of care homes

14th April 2016

Following the long line of appellate authorities and conflicting cases that have emerged in recent years, this week Joe England represented a care home business that is part of one of the largest national partnerships of care homes, successfully having two claims dismissed. The cases were being closely watched by the national business and have very significant ramifications for the chain and the wider care sector.

One of the central issues examined in the case was whether NMW is payable to workers employed during the whole of a ‘sleep-in shift’, i.e. where workers are provided with sleeping accommodation but required to respond to the needs of a business if they arise, in this case the needs of any service users supported by a care home. The Respondent contended that the NMW was not applicable to the whole of the shift and instead relied upon Regulation 15A of the NMW Regulations 1999 and Regulation 32(1) of the 2005 Regulations. Mr England relied principally upon Shannon v Rampersad and others [2015] IRLR 982 and South Manchester Abbeyfield Society Ltd v Hopkins [2011] IRLR 630, distinguishing these cases from Whittlestone v BJP Home Support Ltd [2014] IRLR 176.

For the First Claimant, EJ Roper sitting at Exeter ET held that the NMW was not payable for the entirety of the sleep-in shift. He accepted that Shannon provided the most useful guidance because it was the most recent authoritative case and its facts were the most similar to the Claimant’s. Highlighting that the Claimant was merely ‘on call’, there was no evidence of any statutory requirement and in any event the claim was out of time, the Judge dismissed the Claim.

For the Second Claimant, EJ Roper accepted that NMW was payable for the entirety of the sleep-in shifts because she was “required” to perform the shifts but held that the claim nevertheless was out of time. The detail as to how the Claimants were distinguished is anticipated in the awaited written reasons.

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