The National Minimum Wage legislation is complex and there have been a number of high profile cases in recent years particularly in the care industry concerning whether carers are entitled to the national minimum wage when sleeping or on call.
The National Minimum laws contain highly complex rules about calculating the number of hours worked by a worker and this figure is required to calculate the worker’s average hourly pay and whether this is above the national minimum wage.
The Court of Appeal has recently reviewed the authorities in this area holding that at least one of the earlier EAT decisions was wrong. The case of MenCap v Tomlinson-Blake considered the issue of workers who were on call but asleep at the client’s home and whether this time counted for national minimum wage purposes. The Court of appeal decided that workers sleeping in as carers in the client’s home would only be entitled to have the time counted for national minimum wage purposes where they are, and are required to be, awake for the purpose of performing some specific activity. Sleeping (even if on call but not called) does not count for these purposes.
For those with workers in the care sector it is worth reviewing the decision and taking note of the decisions which the Court of Appeal has called into question in case these are relied on within the business.