Sleep-In Pay Explained
Summary
Sleep-in shifts are a normal part of residential care, but the pay rules confuse many staff. This article explains the Supreme Court's decision in Mencap v Tomlinson-Blake, when the minimum wage applies during a sleep-in, the difference between contractual pay and the legal minimum, and how to check you are being paid correctly.
- National Minimum Wage Act 1998
- National Minimum Wage Regulations 2015
- Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8
- Working Time Regulations 1998
What a sleep-in shift is
A sleep-in is a night shift where you stay at or near your workplace, usually a children's home, care home or supported living service, and are expected to sleep for most of the shift. You are given somewhere to sleep and you get up only if you are needed, for example if a resident is unwell or distressed. A sleep-in is different from a waking night, where you are expected to be awake and working for the whole shift.
The Mencap case: what the Supreme Court decided
For years there was uncertainty about whether every hour of a sleep-in counted for National Minimum Wage (NMW) purposes. The Supreme Court settled the question in Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8.
The court decided that where a worker is expected to sleep during the shift and is merely available for work, the hours spent asleep or resting do not count as work for minimum wage purposes. Only the time you are awake for the purposes of working, for example when you get up to attend to a resident, counts towards the minimum wage calculation.
Two important points follow:
- The decision is about the legal minimum under the National Minimum Wage Regulations 2015. It does not stop employers paying more, and many do.
- The outcome is fact-specific. If you are actually expected to work through the night and are only permitted to nap when things are quiet, you may be working, not merely available, and the whole shift may count. Genuine waking nights always count in full.
Contractual pay versus the legal minimum
Your pay for sleep-ins is set first by your contract, and the minimum wage acts as a floor underneath it. Typical arrangements in social care include:
- a flat sleep-in allowance for the night, sometimes with a set number of hours' pay if you are disturbed
- an hourly rate for time spent up and working during the night, on top of the allowance
- in some organisations, full hourly pay for the whole sleep-in, often agreed with unions or required by commissioners
Check your contract, your employer's sleep-in policy and anything agreed collectively with a union. If your employer has promised a particular allowance or rate, that promise is enforceable as a contractual right even though the NMW does not require it.
Checking your sleep-in pay
- Read your contract and rota codes. Confirm whether a night is classed as a sleep-in or a waking night, and what the stated pay is for each.
- Record disturbances. Keep your own note of every time you were up and working: when you got up, what you did, when you returned to bed. Your employer should have a log too, but your own record is valuable evidence.
- Check the minimum wage arithmetic. For each pay reference period (usually a week or a month), your total NMW pay divided by your NMW hours, including time awake and working on sleep-ins, must not fall below the current rate for your age. Frequent disturbances can tip a poorly paid sleep-in below the floor.
- Query mismatches in writing. If disturbed hours are not being added to your pay, raise it with payroll and your manager, and keep copies.
Sleep-ins and working time
Minimum wage law and the Working Time Regulations 1998 are separate regimes. Time on site on a sleep-in can still be relevant to your rest entitlements and overall working patterns even where it does not attract the minimum wage, so an employer cannot treat sleep-ins as if they were free time for rota purposes. If sleep-ins are stacked against day shifts in a way that leaves you exhausted, raise it as a health and safety concern.
If you think you are being underpaid
- Raise it internally first, with evidence, through your manager or a formal grievance.
- You can complain to HMRC, which enforces the minimum wage, at gov.uk/minimum-wage-complaint. Complaints are confidential and can cover a previous employer.
- Unpaid contractual sleep-in allowances can be claimed as unlawful deductions from wages in an employment tribunal, subject to strict time limits, normally three months less one day from the underpayment.
Where to get help
- Acas helpline on 0300 123 1100 for free advice on sleep-in pay, night work and how to raise a dispute, or visit acas.org.uk.
- HMRC for National Minimum Wage complaints: gov.uk/minimum-wage-complaint.
- Your trade union, which may already have a collective agreement on sleep-in rates where you work.
- Citizens Advice for help calculating what you are owed and pursuing it.
Guidance, not advice. This article is general information based on the position at the last update date. It is not legal advice — for your specific circumstances speak to ACAS, your union, your regulator or a solicitor as appropriate.