The Supreme Court has delivered its judgment in Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home). The case considered whether two “sleep-in” care workers were entitled to National Minimum Wage (“NMW”) during all shift hours including those spent sleeping at or near their place of work.
The Supreme Court ruled that Mrs Tomlinson-Blake and Mr Shannon were not entitled to be paid NMW during periods when they were asleep – they would only be paid when they were awake for the purpose of working.
This ruling will be welcome news for those in the care sector who were worried about the impact this decision might have on their ability to pay wages in the future. They can also breathe a huge sigh of relief in relation to possible back pay claims for sleep-in workers – claims under the NMW can cover six years of arrears, which many care providers can ill afford.
However, the Supreme Court decision does not create an automatic ability for employers to reduce sleep-in pay, as workers on sleep-in shifts will still be entitled to NMW when they are awake and available for work.
Mrs Tomlinson-Blake provided day care, for which she was salaried. She also did sleep-in shifts and was permitted to sleep but required to remain at the home of the two vulnerable adults for whom she cared for. She had no duties except to keep a “listening ear out” to attend emergencies. According to the evidence, she had only been disturbed about six times in the 16 months prior to her claim. She was paid an allowance and one hours pay for her sleep-in shift. Any time worked when she was awake during her sleep-in shift Mrs Tomlinson-Blake received the NMW. Mrs Tomlinson-Blake argued, however, that all of her sleep-in hours should be included for her NMW entitlement.
Mr Shannon was paid a fixed amount per week and was provided with free accommodation at a residential care home. He was permitted to sleep (and provide assistance if necessary) and it was a condition of his employment that he was present at the accommodation from 10pm to 7am. Mr Shannon argued he was “on call” and should have been paid NMW for all night-time hours, he argued the alleged entitlement of NMW arrears amounted to around £240,000.
As part of its decision, the Supreme Court considered whether the established authority of British Nursing Association v Inland Revenue remained good law. This earlier decision held that a worker operating a night-time telephone service from home was working throughout their nightshifts, even during periods when they were expected to be sleeping and the work was intermittent. Crucially in this earlier decision, no reference was made to the first Low Pay Commission report. The Low Pay Commission is an independent body that advises the government about NMW, who submits a yearly report on the future levels of NMW and related matters. The first report contained specific recommendations relevant to sleep-in shifts that workers should not be remunerated when they were on sleep-in shifts.
The Supreme Court ruled that Mrs Tomlinson-Blake and Mr Shannon were not entitled to be paid NMW during periods when they were asleep, only when they were awake for the purpose of working. Lady Arden in her judgement stated,
“The basic proposition is that they are not doing time work for the purposes of the NMW if they are not awake. 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.. That means that the hours that he is permitted to sleep do not form part of the calculation of his hours for NMW purposes (unless he is woken for work reasons)."
In reaching its decision, the Supreme Court considered the meaning of regulation 32 of the National Minimum Wage Regulations 2015 and similar provisions of the preceding National Minimum Wage Regulations 1999. It rejected the established line of thinking that regulation 32 entitled those on standby to work to receive NMW regardless of whether they were awake (an idea arising from the British Nursing Association case). The Supreme Court instead gave greater weight to the first report of the Low Pay Commission (1998), which stated: “workers should be entitled to the National Minimum Wage for all times when they are awake and required to be available for work”. In light of that, it was clear that those who were asleep should not be entitled to NMW.
The Supreme Court held that British Nursing Association can no longer be considered good law, as it did not draw a distinction between working and being available for work. Merely being available for work was insufficient.
Simon deMaid, Employment Partner, comments:
“The Supreme Court’s decision makes clear that a sleep-in worker is only entitled to NMW when they are awake for the purposes of work. There will no doubt be a number of exceptionally disappointed care workers, but it is clear that the decision will come as a massive relief for employers within the care sector as the potential costs of NMW back-pay could have been eye watering for some employers.
Employers who are currently paying NMW for sleep-ins workers should not see the Supreme Court’s decision as a chance to withdraw or alter this level of payment, without first consulting affected workers. A decision to unilaterally vary employment contracts could result in employment tribunal claims and lead to negative effects on the workforce.
Employers should also give consideration to whether paying NMW for sleep-ins will make them more competitive in the employment market and should continue to keep accurate records of sleep-in shifts, in particular, that they are paying NMW for the time when workers are awake for work related reasons.
These two appeals did not engage the home exception within the NMW regulations. This is particularly relevant as many workers may have been subject to COVID-19 stay-home measures over the last year. As a result, there may be further claims if hours spent being available at home qualify for the purposes of NMW regulations.
It is important to note that the Low Pay Commission, may make future recommendations regarding sleep-in shifts and whether NMW should be available to those in situations similar to Mrs Tomlinson-Blake and Mr Shannon. It is unlikely that this decision will be the last time this issue is discussed.”
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