Search

How can we help?

Icon

Sleep-in workers not entitled to national minimum wage when sleeping

In the recent case of Royal Mencap Society v Tomlinson-Blake & others, the Supreme Court had to decide how sleep in workers’ working time should be calculated for the National Minimum Wage (NMW).

The claimants in this case were highly skilled carers whose role included sleep-in shifts. During the sleep in shifts they would rarely have to do work, they were able to sleep and were only there as a precaution. One claimant had to intervene 6 times in 16 months.

Under regulation 32 of the National Minimum Wage Regulations (NMWR) 2015, working time will include time where an employee is ‘available’ for work. However, ‘available’ only includes the hours when the worker is awake for the purposes of working. This is even if the worker is sleeping at or near her place of work.

One of the carers was paid £29.05 for a nine-hour sleep-in shift, which equates to £3.22 an hour. The hourly NMW rate for persons aged 18 or over has been £4.98 or above since 2012. The carers brought an employment tribunal case for failure to pay NMW., claiming that all the time spent sleeping should be counted as ‘working time’ for NMW purposes. Her employer’s argument was that when she was sleeping, she wasn’t working, but merely available for work and NMW didn’t apply under regulation 32 of NMWR 2015. They argued that NMW should only apply when she is awake.

The employment tribunal held that the sleep-in exception did not apply as the worker was actually working for the whole period. This is because she had to keep a listening ear while asleep and exercise judgment on whether to intervene. The employer appealed and the Employment Appeal Tribunal agreed with the employment tribunal’s decision.

The employer appealed to the Court of Appeal and they decided that the sleep-in exception applied. They held that any sleep-in worker would have to have a listening ear as that is what they are there for. The worker rarely intervened and would almost always get an interrupted night’s sleep. Therefore, a flat rate was fair.

The employees appealed to the Supreme Court, who unanimously agreed with the Court of Appeal. They held sleep-in workers are not entitled to entitled to national minimum wage when they are sleeping.

JUDGEMENT

Sleep-in workers are not entitled to entitled to national minimum wage when they are sleeping.

This case provides useful clarification on the law relating to national minimum wage for sleep in workers. However, the Supreme Court in their decision were clear in that whether a sleep-in worker is working will depend on the individual circumstances. Read the full review of the judgment.

For further information on compliance with working time and National Minimum Wage laws, please contact our employment law team.

Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

Author profile

Caroline Lendrum

Associate

View profile

+44 118 960 4669

About this article

Read, listen and watch our latest insights

art
  • 18 August 2026
  • Immigration

Home Office curtailment of Sponsored Workers’ permission: Why employers and employees must act quickly

The Home Office has recently changed the speed at which it processes sponsor notifications following the end of a sponsored worker’s employment.

art
  • 13 August 2026
  • Employment

ACAS Draft New Code on Disciplinary and Grievance Procedures

ACAS have published a draft Code on 30 July 2026, which will replace the 2015 ACAS Code on disciplinary and grievance procedures when the Code is finalised at the end of September 2026.

art
  • 12 August 2026
  • Corporate and M&A

EMIs – April 2026 changes explained

On 6 April 2026 the Enterprise Management Incentive scheme (EMI) was expanded to make EMIs accessible to a wider range of businesses.

art
  • 06 August 2026
  • Privacy and Data Protection

The rise of the AI-powered individual: Is your business ready?

Artificial intelligence is changing the data protection landscape, but perhaps not in the way many organisations expected. Much of the discussion has centred on businesses adopting AI and ensuring they comply with the UK GDPR.

Pub
  • 06 August 2026
  • Employment

Employment law changes in 2026: What you need to know

With ongoing changes to UK employment law, staying updated is more challenging than ever. Join Monica Atwal and Harry Berryman for a live webinar covering 2026 HR changes and key employment law updates on Thursday 17 September.

Pub
  • 04 August 2026
  • Employment

From Opportunity to Employment: Building Inclusive Workplaces Together | Hosted by Breakthrough Supported Employment

Join Breakthrough Supported Employment for a live seminar on building inclusive workplaces at Malmaison Reading. Clarkslegal’s Lucy White will speak alongside industry experts, sharing insights on fostering diversity and creating equitable opportunities.