Government releases updated NMW guidance for sleep-in workers

Following the Supreme Court judgement which confirmed that workers were not entitled to the National Minimum Wage (‘NMW’) whilst sleeping, the Department for Business, Energy and Industrial Strategy have released guidance on how to calculate NMW payments for sleep-in workers.

See our news on the judgement here.

The new guidance confirms that;

• Whilst workers are not entitled to NMW when they are permitted to sleep, the position is different where workers are expected to perform activities for all or most of a shift and are only permitted to sleep between tasks. Here it is likely that NMW must be paid for the whole of the shift on the basis that the worker is in effect working all of that time.
• National Minimum Wage Regulations expressly require the employer to provide suitable sleeping facilities in order for the time spent asleep not to be eligible for minimum wage purposes. Where sleeping facilities are not provided then NMW must be paid for the entire shift.
• Individual circumstances will affect whether an individual is entitled to NMW for their shift. There are various factors to be considered including what the contract provides and what is happening in practice.

Full guidance can be found here.

Aspire Comment:

This guidance has been welcomed by employers who may have been left uncertain about whether their workers are entitled to NMW for shifts where they are permitted to sleep.  The guidance, which includes various situational examples, should help employers to ensure that they are complying with their NMW obligations following the Supreme Court’s decision earlier this year.

There are many factors to consider when paying the NMW. It is vital that you take action to ensure that you are correctly paying the NMW (or NLW) that is due – do not wait for a HMRC enquiry. If you are concerned about whether you are meeting your NMW/NLW obligations as an employer, to ensure you are compliant with your obligations and avoid the financial and reputational risk of being on the next name and shame list, give Aspire a call on 0121 445 6178.