No minimum wage entitlement for sleeping sleep-in care workers

The Supreme Court has handed down its much-anticipated judgment in the case of Tomlinson-Blake v Royal Mencap Society, which was heard in February 2020. The judgment upholds a Court of Appeal decision handed down in 2018 (see our blog here) and provides long-awaited clarity on the issue.

The issue at stake in Tomlinson-Blake v Royal Mencap Society involves care workers who work “sleep-in” shifts. The key question was whether care staff carrying out “sleep-in” shifts are entitled to the national minimum wage (NMW) for each hour during those shifts. The particular facts of the case relate to the support and care of vulnerable adults in their own homes.

The Claimant, employed by Mencap, worked a mix of day shifts and overnight “sleep-in” shifts, providing round-the-clock care to individuals with learning difficulties. While paid an appropriate hourly rate for her day shifts, the Claimant was paid an allowance of £22.35 plus one hour’s pay of £6.70 (the NMW in 2015) in recognition of “the reasonable expectation” of the amount of work she would have to do during her nine hour sleep-in shift, totalling a flat rate payment of £29.05. Any additional time would be paid at the normal rates of pay.

During these shifts she was provided with her own bedroom and adequate sleeping facilities. She was expected to sleep but keep a “listening ear” for the person in her care and, if required, attend to them as necessary. If she had to attend to the person for over an hour, she would be paid an hourly rate for that work on top of the flat rate for her shift. According to the evidence, she had been disturbed only six times in the period of 16 months preceding the initial hearing in the employment tribunal.

“Working” vs “available for work”

The issue at hand was whether this period of sleeping could be counted as “work” or being “available for work” for the purposes of a national minimum wage calculation. Could the Claimant be considered to be working if she was asleep?

The National Minimum Wage Regulations distinguish between two kinds of time for the purposes of deciding whether an individual is entitled to receive national minimum wage – actual working time and “availability for work”.

“Availability for work” relates to the concept of being on-call. A worker who is required to be available for “the purpose of working” at or near his place of work is entitled to have that time counted for national minimum wage purposes unless he is at home or the arrangement is that he is to sleep and facilities for sleep are provided. In the latter case, only the time he is “awake for the purposes of working” will be counted. Lady Arden defined this as: “the worker [having] some duties to perform, such as helping with distributing breakfast to the residents of a home if requested by the day staff or waiting for a call to assist”.

The Judgment

The Supreme Court upheld the 2018 decision of the Court of Appeal, confirming that that workers on sleep-in shifts are entitled to have their hours counted for minimum wage purposes only when they are “awake for the purposes of working”. The court found that in applying Regulation 32 of the National Minimum Wage Regulations, the number of hours the Claimant worked “excluded the hours when she was permitted to sleep unless she was awake for the purpose of working”.

In its conclusion, the court overruled the 2003 decision of British Nursing Association v Inland Revenue in which the Court of Appeal had found that workers who were permitted to sleep between periods of intermittent work were “working” for the entire duration of their shift. It also overruled the decision of the Inner Court of Session in Scottbridge Construction Ltd v Wright from that same year, in which a nightwatchman responsible for answering the phone and dealing with security alarms overnight was held to be working for the duration of his shift, even though he would often sleep.

It is worth noting that the court did not find that being asleep at work can never justify pay at the national minimum wage. Lord Kitchen found that “having a nap” between intermittent tasks is not necessarily inconsistent with a person “working” for NMW purposes. It is also worth noting that, like the previous Court of Appeal decision, this ruling is confined to sleep-in workers.

What’s next for employers?

With a potential back pay bill in the region of £400m had the decision gone the other way, care providers will breathe a sigh of relief following this judgment. However, employers should be cautious in viewing this as an opportunity to reduce sleep-in worker pay to a standard flat rate. This would constitute a change to employment terms and doing so unilaterally would carry the risk of constructive dismissal claims, which can be costly.

As it overruled the decisions of the Court of Appeal in British Nursing and Scottbridge, this judgment may also have wider repercussions on different businesses outside the care sector. Although the facts will have to be closely examined on a case-by-case basis, the distinction drawn by the court between “actual work” and “availability for work” provides clear guidance to employers and employees as to whether a worker carrying out a sleep-in shift is entitled to be paid the national minimum wage.

With special thanks to Lise Whelan, a current trainee in the Employment team, for helping to prepare this blog.

If you require further information about anything covered in this blog, please contact Alice Cave, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, April 2021