Sleep-in shifts, on-call time and the minimum wage: what it puts on your payslip

The published figures

What it puts on, or takes off, the payslip

Sleep-in allowance

The flat figure for the night, shown as a single amount rather than a rate times hours. Payroll may call it a sleeping-in duty payment, a night allowance or a sleepover payment. Mrs Tomlinson-Blake's was £22.35 a shift with one hour's pay of £6.70 on top, £29.05 in total. A correct value is whatever your contract says, and the contract is the only place the figure comes from, because no statute sets a sleep-in rate.

Hours awake and working

A separate hourly line, sometimes called call-out, disturbance or waking hours. This is the line that carries the hours regulation 32(2) actually counts. On a shift where you were up for 40 minutes it should show 40 minutes, not nothing and not an hour. Where the employer pays a standing hour whether or not you were disturbed, that hour is a contractual minimum and is not evidence of how long you were awake.

The hours or units column

On hourly-paid care work the payslip usually shows units rather than a salary. The sleep-in allowance normally appears with no unit count against it, or with a unit count of one, meaning one shift. That is the visible sign that the night is being paid as an allowance and not as nine hours of work, and it is correct rather than an error.

Basic pay, where the same person does days and nights

Salaried day work and an hourly sleep-in can sit on one payslip and be governed by two different chapters of the regulations, which is exactly how Mrs Tomlinson-Blake was engaged. Regulations 21 to 29 run the salary; regulations 30 to 35 run the sleep-in. Nothing on the payslip marks the join.

PAYE and National Insurance on the allowance

A sleep-in allowance is earnings. Section 62 of the Income Tax (Earnings and Pensions) Act 2003 defines earnings as any salary, wages or fee and anything else that is an emolument of the employment, and section 3 of the Social Security Contributions and Benefits Act 1992 defines earnings for National Insurance as any remuneration or profit derived from an employment. HMRC's own guidance on a round sum allowance, a set amount of cash paid regardless of how it is spent, is that it counts as earnings and goes through payroll for PAYE and Class 1 National Insurance in the ordinary way. So the allowance sits inside taxable pay and inside NIable pay with everything else.

Pensionable pay and qualifying earnings

Section 13 of the Pensions Act 2008 defines qualifying earnings for automatic enrolment as gross earnings within a band, and lists salary, wages, commission, bonuses and overtime among the components. An allowance paid in cash for work done falls inside that. Whether it also counts for a scheme that uses its own definition of pensionable pay instead of the statutory band is a question for the scheme rules, and the scheme rules are the only place the answer is.

Holiday pay

Regulation 16 of the Working Time Regulations 1998 pays annual leave at the rate of a week's pay. Since 1 January 2024 regulation 16(3ZA) has spelled out what a week's pay includes for the four weeks under regulation 13 and for leave under regulation 15B, and limb (c) is "other payments, such as overtime payments, which have been regularly paid to a worker in the 52 weeks preceding the calculation date". A sleep-in allowance paid every week for a year is a regularly paid other payment. That list does not extend to the additional 1.6 weeks under regulation 13A, so one leave year can contain two differently calculated rates of holiday pay.

What the payslip does not show

There is no line anywhere on it for the minimum wage sum. Nothing on a payslip divides total counted pay by total counted hours, and no line tells you which of your hours were counted. The sum is built from the hours record, which lives outside the payslip, and from the pay reference period rather than the shift.

What goes wrong

Reading the Supreme Court case as back pay

This is the big one, and it runs the wrong way round. Mencap is widely remembered as a sleep-in pay case, and it was, but the workers lost. Mrs Tomlinson-Blake and Mr Shannon both had their appeals dismissed on 19 March 2021, and the decision removed a line of authority that had been running in workers' favour: British Nursing Association v Inland Revenue and Scottbridge Construction v Wright were both overruled, and the court said British Nursing "should no longer be regarded as authoritative". A flat allowance for a night you were allowed to sleep through is not, on its own, evidence of anything owed.

Awake hours that were never written down

The hours regulation 32(2) counts are the hours you were awake for the purposes of working, and on most sleep-in rotas nobody records them. A shift where you were up twice for half an hour each time leaves no trace unless something in the system captured it: a handover note, a medication administration record, an incident log, a call-monitoring entry. Regulation 59 requires the employer to keep records sufficient to establish that the worker is being paid at least the minimum wage, for six years from the day after the pay reference period ends. What does not exist cannot be paid, and it cannot be checked either.

An allowance that stops clearing the floor once the awake hours are added

The arithmetic is counted pay divided by counted hours, over the pay reference period. Add awake hours to the bottom of that fraction and the rate falls. Then there is a second effect most people never see: regulation 10(k) takes out of the sum any payment attributable to a particular aspect of the working arrangements that is not consolidated into standard pay, unless it is attributable to the performance of the worker in carrying out the work. HMRC's list of what that catches names an on-call allowance, an unsocial working time allowance and a shift allowance. Where an allowance is caught, NMWM09100 says the amount "is reduced from the worker's total remuneration", so it stops helping the sum at all.

Treating a waking night as a sleep-in

If you are rostered to stay up, the carve-out does not reach you and every hour is working time. HMRC's test has two limbs and both have to be met: suitable sleeping facilities, described as a bed in a location where it is reasonable to sleep, and the worker not awake for the purposes of working. A camp bed in an office you are not allowed to use, or a shift where the rota says awake supervision, meets neither. The Supreme Court put the same point as a question about the arrangement: the shifts the rule covers "are only those where the principal purpose and objective of the arrangement is that the employee will sleep at or near the place of work, and responding to any disturbance during the time allocated for sleep must be subsidiary to that purpose or objective".

A rota that is lawful on pay and still over the 48 hour limit

These are different rules and they count the same night differently. For the working time limit, gov.uk lists "time spent on call at the workplace" among the hours that go into a working week, and does not list time on call away from it. So a nine hour sleep-in at the workplace adds nine hours to the 48 hour average while adding almost nothing to the minimum wage sum. Regulation 21 does not disapply the 48 hour limit for care work: what it disapplies for hospitals, residential institutions and prisons is daily rest, weekly rest, rest breaks and night work length, and regulation 24 then requires compensatory rest wherever possible. Three sleep-ins on top of a full week of days can pass every pay check and still break regulation 4.

The allowance left out of holiday pay

Where a sleep-in allowance has been paid regularly across the last 52 weeks, regulation 16(3ZA)(c) puts it inside a week's pay for the four weeks of leave under regulation 13. A holiday week paid at basic day rate alone, on a rota that has carried sleep-ins every week for a year, is not built from that list. Regulation 16(3ZB) does the mechanics: the average weekly amount of those payments over the relevant period is added to the week's pay figure arrived at under sections 221 to 224 of the Employment Rights Act 1996.

On call at home counted as though it were on call at work

Both regulation 32(1) and regulation 27(1)(b) count hours you are available at or near a place of work, and both stop at the same phrase: unless the worker is at home. HMRC puts it as a contrast, that a worker free to be at home and simply contactable "may not be working during the time they are not responding", while a worker required to spend the on-call time at the employer's premises "may be treated as working, even if they are relaxing or watching television". Being unable to drink, or having to stay within twenty minutes of the site, does not by itself turn a night at home into counted hours.

What to check on your next payslip

• The statutory test is a single phrase, "awake for the purposes of working", and the Supreme Court said the word awake is not to be read on its own. Being woken is not the test. Being up and doing something the job requires is. That is the difference between a night that adds twenty minutes to the sum and a night that adds nothing, and it decides the money.
• What makes a shift a sleep-in is the arrangement, not the number of calls: the principal purpose has to be that you sleep there, with responding to a disturbance subsidiary to that. The court rejected the argument that frequent calls turn a sleep-in into working time, and said there is no provision for the position to change according to how often the worker is called. It also said not every worker permitted to take a nap between tasks is a sleep-in worker, so the same reasoning cuts both ways.
• Regulation 59 puts the hours record on the employer, who must keep enough to establish that the worker is being paid at least the minimum wage, for six years from the day after the pay reference period ends. The awake minutes are the only part of a sleep-in with money attached, and they are the part least likely to be written down anywhere. Six years is how far back a record is meant to exist.
• Section 10 of the National Minimum Wage Act 1998 gives a worker who believes they are being underpaid the right to serve a production notice, and the records must be produced within fourteen days of the notice or at a later time agreed in that period. Section 11 puts a figure on refusing: an employment tribunal can award the worker a sum equal to 80 times the hourly minimum wage in force when the award is made. That is the statutory price of records that do not appear, separate from any arrears.
• The minimum wage sum runs over the pay reference period, which regulation 6 caps at one month, and divides total counted pay by total counted hours. A single shift proves nothing either way. A month in which the awake hours ran high and the allowance stayed flat is the shape that fails, and it only becomes visible when the whole period is added up.
• Regulation 10(k) removes from minimum wage pay any payment attributable to a particular aspect of the working arrangements that is not consolidated into standard pay, unless it is attributable to the performance of the worker in carrying out the work. Whether the sleep-in allowance itself counts towards the floor turns on those two questions, and HMRC treats an allowance as consolidated where it moves with the annual pay award, feeds pensionable pay or feeds the overtime rate. The answer changes the arithmetic rather than adjusting it.
• The Working Time Regulations 1998 and the minimum wage regulations count the same hours separately, and gov.uk states that time on call at the workplace goes into the working week while time on call away from it does not. It is why a rota can be lawfully paid and still unlawful, and why the answer to "do these hours count" depends entirely on which rule is being asked. Rest entitlements and the 48 hour average are not bought off by a sleep-in allowance.

The 4 occupations this reaches, and how

Each line is specific to that trade. Where a scheme depends on how you are engaged rather than on the work itself, the line says so.

Care Home Manager

A registered manager on a supernumerary on-call rota is in a different regulation from the staff on the floor. Regulation 27 is the salaried hours route, and its availability limb stops at your own front door: hours available for work at or near the workplace are treated as worked, unless the worker is at home. So a week carrying the on-call phone from your house adds nothing by itself, and only the time you spend actually dealing with a call goes in. The weekly on-call allowance most managers carry is taxed as ordinary pay in the month it is paid, and it is not measured against the minimum wage floor in any month where the salary clears that floor comfortably, which for a full time registered manager it normally does. The 48 hour average is the limit that still bites.

Care Worker

Mrs Tomlinson-Blake was a care support worker, so the leading case is a description of this exact rota. She was salaried for day care and separately did sleep-in shifts at the two clients' own home, paid a flat £22.35 with one hour at the then rate of £6.70 on top, and had been disturbed about six times in sixteen months. That is why two chapters of the regulations can run over one of your weeks: the salaried day work sits under regulation 27 and the sleep-in sits under regulation 32. Hourly domiciliary rounds add a third rule the case never touched. Regulation 34 counts time spent travelling between one client and the next, because those are not places occupied by your employer, and that travel is paid time whether or not the rota calls it anything.

Healthcare Assistant

A ward night is not a sleep-in and has never been one. The carve-out needs two things present at the same time: you are permitted to sleep, and the employer has provided facilities suitable for it. A Band 2 or Band 3 night on an acute or mental health ward gives you neither, so the shift is working time from start to finish and the Section 2 unsocial hours enhancement is calculated on top of hours that already count in full. The question only opens where the same job title is worked for one of the independent care providers in the sector, on a roster that puts you in a bed instead of on the floor. What settles it is the roster and the sleeping arrangement, not the job title on the contract.

Senior Support Worker

Supported living runs two overnight patterns that pay very differently and can look identical on a rota. A waking night is not a sleep-in at all: you are rostered to stay up, so every hour is counted and the whole shift is measured against the minimum wage. The other pattern is the sleep-in, and the Supreme Court drew the line at the principal purpose of the arrangement, with dealing with a disturbance subsidiary to sleeping. Seniors sit on the join. You may be the only waking cover on a service while a junior sleeps in the next flat, which puts two people on the same premises all night under two different hours rules and two different lines on the payslip. Being woken to supervise somebody else's shift is you awake for the purposes of working.

Questions

Sources