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Supreme Court to have the last word on payment for sleep-in shifts

On Wednesday 13th February 2019, the Supreme Court permitted an appeal against last year’s Court of Appeal decision in the case of Royal Mencap Society and Claire Tomlinson-Blake.

In the Mencap case, the Court of Appeal unanimously decided that Ms Tomlinson-Blake was not working for the duration of  "sleep-in" shifts for the purpose of the National Minimum Wage Regulations. The Court held that other than times she was required to be awake for the purposes of working, she was simply making herself "available for work". The ruling also dismissed back-pay claims against care charities that had followed previous government advice.

Following the Mencap decision, employers in the care sector thought they had finally received clarity that the national minimum wage was not payable for the duration of sleep-in shifts. Until now…

In response to the Court of Appeal’s decision, Unison (on behalf of Ms Tomlinson-Blake) applied to appeal the decision to the Supreme Court.

The Supreme Court has granted that application, meaning that it will review the Court of Appeal’s decision. The legal position on whether the national minimum wage is payable during sleep-in shifts could therefore change yet again.

The date of the Supreme Court hearing has not yet been announced but is unlikely to take place before October 2019, meaning a long wait for clarity on the subject and prolonged uncertainty for both employers and employees.

However, one thing, is certain: the final decision of the Supreme Court will not be an easy one to reach, given the vast amount of caselaw and variable factors in this area. We are hopeful that the appeal means clarity will be provided once and for all, however many remain sceptical as to whether this case will ultimately be the end of the issue.

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