In Royal Mencap Society v Tomlinson-Blake, the EAT has determined that an employee who was required to carry out a sleep-in shift to provide support and care to vulnerable adults in their own property was entitled to national minimum wage for the full duration of the night shift.
In Royal Mencap Society v Tomlinson-Blake, Mrs Tomlinson-Blake was obliged to remain at the private accommodation of the service users throughout her sleep-in shift and to keep a ‘listening ear’ during the night in case her support was needed and to respond to emergencies that may arise. If nothing required to be done, she was entitled to sleep throughout the shift. For each sleep-in shift, Mrs Tomlinson-Blake received a flat-rate payment together with one hour’s pay.
Mrs Tomlinson-Blake claimed that the whole sleep-in shift should have been treated as ‘time work’ and accordingly she had not been paid in accordance with the national minimum wage regulations. Mencap argued that the obligation on Mrs Tomlinson-Blake during her sleep-in shift was to be ‘available’ at her place of work and as time spent asleep did not count as ‘time work’ she had been paid correctly.
The appeal was heard by the EAT in conjunction with two other appeals covering the same issue, namely, whether employees who sleep-in in order to carry out duties if required, engage in ‘time work’ for the full duration of the night shift or whether they are only entitled to the national minimum wage when they are awake and carrying out their relevant duties?
Despite recognising the need for clarity on this issue, the EAT confirmed that there is no ‘bright line principle’ that can be applied. Instead, the EAT held that the proper approach is to adopt a ‘multifactorial evaluation’ in considering whether the individual is ‘working’ during the period for which they claim. In doing so, the EAT also identified the following potentially relevant factors in determining whether a person is ‘working’ by being present at the work place:
- the employer’s particular purpose in engaging the worker to the extent that it informs what the worker might be expected or required to do;
- the extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer;
- the degree of responsibility undertaken by the worker; and
- the immediacy of the requirement to provide services if something untoward occurs or an emergency arises.
In Mrs Tomlinson-Blake’s case, the factors relied on included: Mencap’s regulatory and contractual obligations to have someone on the service user’s premises; the responsibility on Mrs Tomlinson-Blake throughout the sleeping shift to be and remain present throughout (whether asleep or not); and to keep a listening ear and exercise her professional judgment to determine whether or not to intervene. The EAT found that the ET was entitled to conclude that Mrs Tomlinson-Blake was performing the role of a carer during the sleep-in shift, whether asleep or not, and accordingly she had not received the pay required by the NMW regulations.
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