Supreme Court decision on sleep-in pay brings relief to schools

24th March 2021

The Supreme Court’s decision on the question of sleep-in pay for employees, including those in boarding schools and residential situations, will come as a relief to those who have waited so long for clarity.

The case focused on whether staff who worked sleep-in shifts overnight should be paid the National Minimum Wage (NMW) for their whole shift. The Supreme Court decided that only the hours spent awake for the purpose of working should be paid at NMW rates, where the worker was expected to sleep unless disturbed.

As a result of the decision, schools can put in place fixed allowances for sleep-in workers and do not need to pay the NMW for every hour of the sleep-in shift (unless the worker is awake for the purposes of working). Schools will also not have to cover back pay in relation to historic sleep-in shifts.

Litigation on this issue began more than 20 years ago, and the first ruling in this particular case dates back to 2016.

As a result of the decision, schools should now:

  • Identity staff members who will be affected by this ruling
  • Consider explaining the outcome of the case to those staff members if a concern or grievance has been raised, particularly if there are ongoing discussions around rates of pay pending the Supreme Court decision
  • Review sleep -in pay, particularly those schools who have adopted NMW rates for sleep in shifts
  • Consider the best practice to record the hours of staff members who are on a ‘sleep in’ to ensure they are paid correctly. There will need to be a record of the time the employee spent undisturbed and sleeping (which will not attract the NMW rates) and the time spent working and responding to issues (which will attract the NMW rates).

If your school is affected by the decision, please do not hesitate to contact us for advice.

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