Workers who are asleep but on call are not entitled to the national minimum wage, held the Court of Appeal; this entitlement is confined to workers who are required to be awake for the purposes of working.  This stark distinction was made by the Court of Appeal in the case of Mencap Society v Tomlinson-Blake; Shannon v Rampersad (t/a Clifton House Residential Home) [2018] EWCA Civ 1641.

Mrs Tomlinson-Blake and Mr Shannon were contractually obliged to spend the night at, or near, their workplaces and were expected to sleep for most of the period but could be woken if their assistance was required.  The care workers were paid a fixed sum for the sleepover shift and received additional pay/benefits if called.  They both argued that the whole sleep-in shift constituted time worked or salaried hours work and that they were therefore unlawfully underpaid under the National Minimum Wage Regulations.

The Court of Appeal found that the workers in both cases were to be treated as available for work during their sleep-in shift, rather than actually working.  The result was that only those hours during which they were required to be awake for the purpose of working, counted for NMW purposes.

Niki Avraam, Employment Partner comments: The judgment brings some clarity by ruling that workers who sleep at a residential care home or similar place of work while “on call” for emergencies, are merely available for work (and therefore not entitled to the NMW) until actually called upon.  This case does not provide a definitive answer for other types of worker; by and large, it will come down to a balancing act to decide which side of the line the case falls.


Howat Avraam Solicitors provide Commercial, Employment and Contract Dispute advice to companies and business owners. As business owners ourselves, we have a pragmatic in-house approach to resolving issues before they arise by working alongside our clients. We are commercial, practical and entrepreneurial in our approach to legal services.

To discuss any employment matter on a no obligation basis, please contact Niki Avraam, Employment Partner, on 020 3735 6708 or email Niki at Alternatively, visit our website at

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