The Court of Appeal held in Royal Mencap Society v Blake, that care workers who were required to sleep at, or near, their workplace, and be available to work if required, were not actually working and were instead only available for work. Therefore, the workers were not entitled to be paid the National Minimum Wage for the whole of the “sleep-in” shift, but were only paid for the time they were required to be awake for the purpose of working.

The National Minimum Wage Regulations 1999 stipulate that workers are entitled to be paid the National Minimum Wage for all time spent working.

In this case the employee, Ms Tomlinson-Blake was a care support worker employed by Mencap. She slept at her place of work when working a sleep-in shift. She was not allocated any specific tasks to perform but was required to keep a ‘listening ear’ out during the night in case her support was needed. If her support was not needed she could sleep throughout her shift.

Ms Tomlinson Blake claimed that she was entitled to be paid the National Minimum Wage for the whole of her shift, including the time she spent sleeping.

The Employment Tribunal and the Employment Appeal Tribunal upheld her claim. However, the Court of Appeal allowed the employer’s appeal.

The Court of Appeal held that Ms Tomlinson-Blake was ‘available for work’ and deemed that she was not actually working whilst sleeping. This was based on the fact that she was provided with facilities for sleeping and it was expected that she would get sufficient sleep as she would often have to work the following day.

This case highlights that sleep-in workers will not be entitled to receive the National Minimum Wage for time actually spent sleeping, but only where they are obligated to be awake for the purpose of performing specific activities.

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