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Every hour you are in work, you should be paid National Minimum Wage or more, right? Wrong. In a recent Supreme Court case, an exception was highlighted. Read all about it here.


What Was the Court’s Judgement?

Today, the Supreme Court have dismissed the appeal brought by Mrs. Tomlinson-Blake in their judgment, Royal Mencap Society v Tomlinson-Blake.

Mrs. Tomlinson-Blake claimed that she should be paid National Minimum Wage (NMW) for the sleep-in shifts she worked, regardless of whether she was awake or asleep during her sleep-in shift.

She looked after two men who were supported by Mencap in their own home. Over a 16-month period, they only woke occasionally. During their sleep-in shifts, their employers required them to stay at their place of work and sleep, unless there was an emergency she needed to deal with.

Mrs. Tomlinson-Blake stated that she had to keep a listening ear out the whole night in case there was an emergency she had to attend. It was argued that Mrs. Tomlinson-Blake should have been paid National Minimum Wage (NMW) for each of the hours of the night shift, even if she was asleep.

Mrs. Tomlinson-Blake received an allowance of £22.35 and was paid for one hour at the rate of £6.70 for each sleep-in shift.

The Supreme Court held that there was an exemption in the NMW legislation, which applied to sleep-in workers and therefore Mrs. Tomlinson-Blake was not entitled to be paid NMW for her sleep-in shifts.


The Court Held That: 

  • Simply because an employee is subject to the employer’s instructions, does not mean they are entitled to a wage. There are many situations when a worker has to act for the benefit of their employer, which do not count for ‘time work’, for example, travels between home and work.
  • The Low Pay Commission did not intend that anyone who was permitted to sleep could be deemed to be ‘working’ or engaged in ‘time work’.
  • Under the regulations, it is clear that sleep-in shift workers are not doing ‘time work’ for the purposes of NMW and are not doing ‘time work’ unless they are awake for the purposes of work.
  • The multi-factor test that Mrs Justice Smiler set out in the EAT to determine whether someone was ‘working’ simply by being present before deciding whether they were engaged in ‘time work’ is not required under the National Minimum Wage Regulations and should not be followed.
  • However, if a worker is actually called on to respond to someone’s care needs (or any other duties) when on a shift, that time will count as ‘time work’ and be subject to NMW.

The Supreme Court also held that British Nursing v HMRC should no longer be followed. The Court decided that it was not a correct statement of the law for sleep-in shifts. Please note that the Court was divided on why that was, and so this decision cannot be regarded as binding case law.

It is also important to note that this differs to those who are on call expected to be available for work not to sleep.

As a result, of the appeal being dismissed. Miss Tomlinson-Blake is unable to bring action against Mencap for unlawful deduction of wages.


Unsure About Your Work Rights?

Whether you’re unsure about your legal rights to pay or have another employee law query, our team of friendly and experienced employment law solicitors can help. Get in touch today to discuss your case and how we can help.

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