The Supreme Court today, 19th March, handed down its much-anticipated judgment in the landmark case of Tomlinson-Blake v Royal Mencap Society which was heard in February 2020, addressing the issue of whether staff carrying out overnight ‘sleep-in’ shifts in the care sector are entitled to be paid the National Minimum Wage for the entire duration of those shifts.
Dismissing the claimant’s appeal against the Court of Appeal’s judgment, it held that a care worker was not entitled to be paid the NMW for all the time that they were on a ‘sleep-in’ shift.
Among other services, Mencap provides support and care to vulnerable adults on behalf of local authorities. The claimant was employed by Mencap as a care support worker. She was part of a team who worked a mix of day shifts and overnight ‘sleep-in’ shifts at two residential properties, providing 24-hour care to individuals with learning difficulties who lived there.
The Employment Tribunal found that no specific tasks were allocated to the claimant during ‘sleep-ins’ but she was obliged to remain at the homes throughout the shift and to keep out a ‘listening ear’ in case her support was needed. She was required to intervene if it was.
The Tribunal also found that the need to intervene was real but infrequent: the claimant had only been required to get up on six occasions in the previous 16 months. The evidence was that she was positively expected to get a good night’s sleep as she might have to work the following day.
The claimant received an allowance for the whole sleep-in shift plus one hour’s pay. In the ET proceedings, she claimed the National Minimum Wage for the full duration of each sleep-in shift.
Section 1 of the Minimum Wage Act 1998 creates a right for workers, in any pay reference period, to be paid an hourly rate of remuneration for work performed.
The National Minimum Wage Regulations 2015 (like its predecessor, the National Minimum Wage Regulations 1999) make provision with respect to the time for which the worker is to be treated as working and therefore entitled to the minimum wage. The appeal concerned one type of work provided for in the Regulations, namely ‘time work’ which regulation 3 defines as work in respect of which a worker was paid by reference to the amount of time worked.
Regulation 32 of the 2015 Regulations states:
The effect of regulation 32 (which is akin to a deeming provision) is that if a worker has to be available at a place of work where suitable sleep facilities are provided, the worker is only paid the NMW for the time when they are “awake for the purposes of working”.
However, in several EAT judgments (first Burrow Down v Rossiter  ICR 1172), care workers had been found to be actually working throughout ‘sleep-ins’ – for example because they could not leave site or were present pursuant to a statutory obligation on the employer – and therefore the question of whether they were deemed to be working pursuant to regulation 32 simply did not arise.
The Supreme Court confirmed that workers on sleep-in shifts are entitled to have their hours counted for NMW purposes only when they are “awake for the purposes of working”.
The Court emphasised the distinction in the Regulations between carrying out ‘actual work’ on the one hand and being ‘available for work’ on the other: if the worker was (merely) available for work, regulation 32 applied and they could not be said to be carrying out actual work under regulation 3.
In so concluding, the Supreme Court overruled the influential decision in British Nursing Association v Inland Revenue  ICR 19 in which the Court of Appeal had found that workers were working throughout the night shift even though the work was intermittent and they were permitted to sleep.
It also overruled the decision of the Inner Court of Session in Scottbridge Construction Ltd v Wright  IRLR 21 in which a nightwatchman responsible for answering the phone and dealing with security alarms on an overnight shift was held to be working throughout the shift, even though it was very rare that he was not able to sleep.
A second appeal, concerning ‘salaried work’ under the Regulations, Shannon v Rampersad, was heard with Mencap and the Supreme Court found in favour of the employer on the same reasoning as in Mencap.
This judgment will have an enormous impact on the care sector. The potential historic liability, through a gap in funding – estimated in the hundreds of millions of pounds across the sector – would have threatened some providers’ future viability had they been obliged to pay their staff the NMW for the whole of sleep-in shifts.
As it overruled the decisions of the Court of Appeal in British Nursing and Scottbridge, the Supreme Court’s judgment will also have significant repercussions on businesses outside the care sector. Although the facts of any particular case will have to be closely examined, the clear distinction drawn by the Supreme Court between ‘actual work’ and ‘availability for work’ should provide a clear steer to employers, employees and Employment Tribunals as to whether any worker carrying out a sleep-in shift is entitled to be paid the NMW.
James Davies said “This is a fantastic result for our client Mencap and the care sector generally. After the challenges of 4 varying decisions from the Court of Appeal, we now have the correct and definitive interpretation of the regulations. This means charities no longer face the liability of 6 years’ backpay which was not funded by the relevant local authority. Charities across the UK care sector no longer face the prospect of financial ruin although they continue to face other significant underfunding issues. Mencap has and continues to campaign for change to the regulations and improved funding going forward.”
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