Supreme Court rules carers not entitled to minimum wage for ‘sleep-in’ shifts – Royal Mencap Society v Tomlinson-Blake

The Supreme Court has ruled in a long-awaited judgment that care workers are not entitled to the national minimum wage for periods when they are asleep on shift.

Facts

Mrs Tomlinson-Blake was employed by the Royal Mencap Society as a care support worker. She cared for two vulnerable adults with autism and significant learning difficulties at their home.

In addition to day shifts, Mrs Tomlinson-Blake was also required to do ‘sleep-in’ shifts between the hours of 10pm and 7am, for which she was paid a flat rate of £29.05 in total. There were no specific tasks to be carried out during the ‘sleep-in’ shifts, but Mrs Tomlinson- Blake was required to keep a “listening ear” during the night in case her support was needed. Following an investigation, it was found that her assistance had been needed six times over the preceding 16 months.

Mrs Tomlinson-Blake made a claim to the Employment Tribunal (“ET”) that every hour during a ‘sleep-in’ shift should be classed as working time and should be paid an hourly rate of at least the national minimum wage (“NMW”). In her claim, Mrs Tomlinson-Blake emphasised that staff on ‘sleep-in’ shifts are “constantly on guard to protect the most vulnerable in society” and don’t rest easy. She explained that “the sound of a cough in the night could mean someone is in danger.”

Judgment

The ET ruled in Mrs Tomlinson-Blake’s favour and found that she had been working throughout her ‘sleep-in’ shift and should be entitled to NMW for the entirety of her shift. This decision was upheld by the Employment Appeal Tribunal.

However, the Court of Appeal ruled against this and stipulated that she was only entitled to NMW when she was actually carrying out duties and not when she was resting.

The Supreme Court upheld the Court of Appeal’s decision and concluded that a requirement for a ‘sleep-in’ carer to be present during specified hours is not sufficient to draw a conclusion that he or she is working. The Supreme Court emphasised the distinction between carrying out ‘actual work’ and being ‘available for work’. It found that individuals who are expected to sleep during a shift are only entitled to NMW when they are “awake for the purposes of working”. It took into account the report of the Low Pay Commission (1998), which had recommended that sleep-in workers should receive an allowance, and not NMW, at a level to be agreed between the employer and employee.

To work out if a worker is awake ‘for the purposes of working’ in order to be entitled to the NMW, it is necessary to look at what the worker is required to do when they are not asleep on a sleep-in shift. If the only requirement is to answer emergency calls, the worker’s time in those hours does not form part of the NMW calculation, unless they are actually answering an emergency call.

Implications

This decision is of huge significance for the care sector, which was facing potential claims of an estimated £400 million in back pay and would have resulted in some care providers being forced to close. Previous cases had held that NMW had to be paid for sleep-in shifts even when the worker was sleeping.

Like many care providers, Mencap has acknowledged the need for major reform of the care system. They have already urged the Government to reconsider the legislation that governs ‘sleep-in’ payments and increase its investment in the sector so that care workers can receive higher rates of pay.

It is important to note that time spent on a sleep-in shift will still count towards calculations of hours worked for the purposes of the Working Time Regulations.

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