Minimum wage and sleep-in shifts

I reported in update 1903 that trade union Unison had applied to the Supreme Court in August 2018 for permission to appeal against the Court of Appeal ruling that minimum wage only has to be paid for time when a person on sleep-in shifts is actually working or required to be awake for the purpose of working, and only if sleeping facilities are provided by the employer (“the Mencap case”). I wrote that this was a win for charities and other organisations who say they cannot afford to pay minimum wage for all of the time workers may be on call but are allowed to sleep. But it was a loss for workers who are required to be at work, but now only have to be paid if they are working or required to be awake. They no longer have to be paid – not even the previous flat rate which may have been below minimum wage – for the rest of their time at work.

Two days after my update, the Supreme Court announced that it would permit the appeal. But it is likely to be many months, even into 2020, until there is a final judgment.

Solicitors Ashfords summarise the situation: “One thing is certain: the final decision of the Supreme Court will not be an easy one to reach, given the vast amount of case law 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.” (


For comments from Unison, Mencap and the Voluntary Organisations Disability Group see Mencap sleep-in case to be heard in Supreme Court, Civil Society 14/2/19:

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