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Are “sleep-in” care workers entitled to the National Minimum Wage for the entirety of their shift?

Principal Solicitor, Paul McGowan

The Supreme Court in the joint appeal of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home) has considered whether care workers who ‘sleep-in’ during their night shift are entitled to receive the National Minimum Wage (“NMW”) for the entirety of their shift, including the time spent sleeping and not performing activities.

Background

The first Claimant was employed by Royal Mencap Society (“the Respondent”), as a care support worker. The Claimant provided care and support to two men in a private property with substantial learning difficulties and autism. Both the appeals were brought by “sleep-in” care workers who were required to sleep at or near their place of work. Whilst they were not required to undertake specific duties during the shift, the Claimants were required to keep a “listening ear out” and be available to be called on during the night.

Both Claimants brought a claim to the Employment Tribunal contending that they were entitled to receive the NMW for the entirety of their sleep-in night shift.

The Law

The National Minimum Wage Act 1998, the National Minimum Wage Regulations 1999, and the amended National Minimum Wage Regulations 2015 (“the Regulations”) provide the relevant legislation in respect of the issues raised in these claims.

Regulation 32 of the National Minimum Wage Regulations 2015 govern the interpretation of time work where a worker is available, at or near a place of work:

  1. “Time work includes hours when a worker is available, and required to be available, at or near a place of work for the purposes of working unless the worker is at home. 
  2. In paragraph (1), hours when a worker is “available” only includes hours when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping.”

Under the Regulations, a worker is therefore only entitled to NMW when a worker is awake and available to carry out specific tasks and not when they are sleeping.

Decision

At the Employment Tribunal and at the Employment Appeal Tribunal, Ms Tomlinson-Blake’s claim succeeded, and the Tribunal held that her sleep-in shift did amount to working time under Regulation 30 of the 2015 Regulations. In the first instance, Shannon’s claim failed at the Employment Tribunal but succeeded in the Employment Appeal Tribunal. Both cases preceded to the Court of Appeal. The Court of Appeal concluded in respect of both claims that neither Claimant was entitled to NMW for the entirety of their shift. The Court held that care workers who are required to sleep at, or near their workplace to provide assistance in the event of an emergency are merely ‘available for work’ and not working for the purposes of the NMW Regulations.

The Supreme Court unanimously dismissed the appeals, concluding that “sleep-in” workers are not entitled to the National Minimum Wage for the entirety of their shift. The Supreme Court held that workers are only entitled to NMW during a sleep-in night shift when they are required to be awake for performing some specific activity. The Supreme Court also highlighted the guidance in the Low Pay Commission report, which recommended that individuals are only entitled to receive the National Minimum Wage when workers are “awake and required to be available for work.”

The Supreme Court also overruled the case of British Nursing Association v Inland Revenue. In this case, employees were held to be working during a night shift even when they were sleeping. Lady Arden highlighted that the Court in this case failed to differentiate between ‘working’ and being ‘available to work’ under the Regulations.

Comment

The release of this decision has been much anticipated within the care sector. This decision confirms that “sleep-in” care workers who are permitted to sleep during their shift but must remain on call, are not entitled to be paid the NMW for their whole shift. Care workers will only be entitled to NMW wage during a “sleep-in” shift when they are called upon to perform specific activities.

Case reference: Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad and another (T/A Clifton House Residential Home) [2021] UKSC 8

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