The Supreme Court has this morning (19 March) handed down its much anticipated judgment in the joined cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home). Following the 2018 judgment of the Court of Appeal and dismissing the appeal, it held that care workers doing overnight sleep-in shifts are not entitled to be paid National Minimum Wage (NMW) for the entire duration of the shift.
Sleep-in care workers are only entitled to be paid the NMW when they are awake for the purposes of working, not when they are permitted to sleep.
What does this mean for employers?
This is a very significant and welcome judgment for the care sector and provides much needed certainty after a long drawn out litigation. Had organisations been obliged to pay their staff the NMW for the whole of a sleep-in shift it would mean not only increased cost in wages going forward, but also scope for claims for back pay dating back six years which could have reportedly cost the industry £400 million.
Employers should analyse how they are paying sleep-in workers in light of the judgment. However, if some employers are currently paying NMW to sleep-in workers for their full shift they should exercise caution and take advice before reducing pay as a result of the judgment - in order to avoid breach of contract or constructive unfair dismissal claims.
Employers should also be aware that Unison, who backed Ms Tomlinson-Blake in this case, have said this morning that they will now push for a change in the law so that sleep-in shifts count as working time for NMW purposes.
Detailed analysis:
The Issue
The Court looked at the situation where residential staff, both in the care sector and elsewhere, are required to be on-call overnight but expected to sleep. The broad issue was whether the entirety of the period spent on the premises under such arrangements must be taken into account in calculating the employer's obligations under the NMW Regulations or only such time as is spent actually performing some specific activity.
The Facts
The claimant, Ms Tomlinson-Blake, was employed by Mencap to sleep at a service user's home in order to be available to assist the service user if an incident occurred. She was paid a flat rate of £29.05 for the 9 hours she was on shift. She also worked during the day and received £6.70 an hour for that work. The NMW Regulations provide that all workers must receive the NMW or National Living Wage as an average for all hours worked in each pay period, for example, over a month if paid monthly.
The claimant had her own bedroom and was required to keep a "listening ear" out during the night in case her support was required. She was otherwise free to sleep or use her time as she wished, but she could not leave the premises. She was required to intervene on six occasions in a 16 month period.
The appeal in the case of Shannon v Rampersad was combined with the Mencap appeal. This was on slightly different facts but the Supreme Court also found for the employer in that case, adopting similar reasoning.
The Judgment
The Supreme Court held that on a straightforward reading of the NMW Regulations, workers on sleep-in shifts are only entitled to have their hours counted for NMW purposes when they are (and are required to be) awake for the purpose of performing some specific activity.
In giving its judgment the Court also relied on the reports of the Low Pay Commission which led to the enactment of the NMW. The report recommended that the only time that should count for NMW purposes were periods when workers on a sleep-in shift were "awake and required to be available for work".
The Court pointed out that the worker must be awake ‘for the purposes of working’ in order to be entitled to the NMW, and so it is necessary to look at the arrangements between the employer and the worker to see what duties the worker is required to do when not asleep.
As summarised by Lady Arden, the leading judge in the Supreme Court judgment: “If the employer has given the worker the hours in question as time to sleep and the only requirement on the worker is to respond to emergency calls, the worker’s time in those hours is not included in the NMW calculation for time work unless the worker actually answers an emergency call. In that event the time he spends answering the call is included. …. It follows that, however many times the sleep-in worker is (contrary to expectation) woken to answer emergency calls, the whole of his shift is not included for NMW purposes. Only the period for which he is actually awake for the purposes of working is included.”
“Waking night” carers and other night shift workers
The Court did not find that being asleep at work can never justify pay at the NMW; it will depend on the facts. There is much emphasis in the judgments, both at Court of Appeal and Supreme Court, of sleep-in workers being “expected to sleep” throughout their shifts. As such, waking night carers or others who are expected to be awake for most of the night but might be permitted to nap between their duties (rather than having an expectation of sleep for most of the night) are likely to still benefit from the NMW throughout their shift.
Working time
It is important to note that the judgment only relates to the scope of “work” and “working time” for the purposes of the NMW. The meaning of “work” for the purposes of the Working Time Regulations is a separate concept.
