Supreme Court Clarify National Minimum Wage Point

The first case this month looks at the National Minimum Wage (NMW). Specifically, it considers whether night-shift workers who are allowed to sleep on shift are entitled to the NMW.


The Supreme Court heard two separate cases together, as they concerned the same point of law. Both Claimants were carers who worked night-shifts and were permitted to sleep whilst on shift, with the expectation being that if there was an emergency, they would wake up and assist the carer on duty. Both Claimants were rarely disturbed in their sleep, and both brought claims for backdated pay, heaving received substantially less than the NMW for the work they had carried out.


The relevant statute is the National Minimum Wage Act 1998. This provides that there shall be a National Minimum Wage, to be determined by government each year, following a review from the Low Pay Commission (a statutory body set up by the Act).

Various regulations govern the National Minimum Wage Act 1998. The ones relevant to this case are the 1999 and 2015 regulations. These provide that a worker who is “on call” shall be entitled to the NMW. There are two exceptions: If the worker is “on call” from his own home (for example answering telephone calls), or is allowed to sleep during his shift, he shall not be entitled to the NMW.

This may suggest that the present case is easily answered: both Claimants were “on call” but were permitted to sleep during their shift, meaning they were not entitled to the NMW. But some lawyers (not PJHLaw of course) like to make things difficult, and a case from 2002 precluded simplicity. In British Nursing Association v Inland Revenue [2002], the Court of Appeal decided that nurses who worked a night-shift from home, occasionally answering calls when required, were “working” for the purposes of the National Minimum Wage Act 1998 (not “on call”) and were therefore entitled to the NMW for the duration of their shift.

The Claimants in this case argued that as they were allowing the Respondents to fulfil a statutory duty (a regulatory duty that obligated them to have more than one worker on shift at any given time), they were carrying out a valuable working function and were therefore working (and so entitled to the NMW for the duration of their shift).

The decision

The Supreme Court dismissed both appeals. In doing so, they said that the British Nursing case should no longer be regarded as authoritative, because “it would not be a natural use of language, in a context which distinguishes between actually working and being available for work, to describe someone as working when she is positively expected to be asleep” (as the nurses in the case were). This dismantled the Claimants’ arguments and ultimately gave the Supreme Court no other option than to fall back on the black letter wording of the regulations, which provides that if a worker is “on call” and they are allowed to sleep during this time, they are not entitled to the NMW.