On 19th March the Supreme Court gave its judgment in the important case of Tomlinson-Blake v Royal Mencap Society, which dealt with the question of whether staff carrying out overnight ‘sleep-in’ shifts in the care sector are entitled to be paid the national minimum wage (NMW) for the whole duration of those shifts.
Dismissing Ms Tomlinson-Blake’s appeal, the Supreme Court concluded that a care worker was not entitled to be paid the NMW for the whole time that they were on a sleep-in shift.
Mencap employed Ms Tomlinson-Blake as a care support worker. She was one 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.
During sleep ins, no specific tasks were allocated to Ms Tomlinson-Blake, but she was required to remain at the homes throughout the shift and to keep out a ‘listening ear’ in case her support was needed. If it was, she was required to intervene. In reality, the need to intervene was infrequent: she had only had 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.
Ms Tomlinson-Blake received an allowance for the whole sleep-in shift plus one hour’s pay. She claimed the NMW for the full duration of each sleep-in shift.
Workers, in any pay reference period, have the right to be paid an hourly rate of remuneration for work performed. The NMW Regulations make provision with respect to the time for which the worker is to be treated as working and therefore entitled to the minimum wage.
Ms Tomlinson-Blake’s appeal concerned one type of work provided for in the Regulations, i.e., ‘time work’ which is defined as work in respect of which a worker was paid by reference to the amount of time worked.
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. 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.
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”.
In several earlier judgments, care workers had been found to be working throughout sleep-ins (even though they were sleeping),for example because they could not leave site or were present pursuant to a statutory obligation on the employer. This case reverses the view that sleep-in shifts could qualify for the NMW.
The Supreme Court made the following key findings:
- For the purposes of deciding whether a person is 'working' under the NMW provisions, it does not matter that a worker is at their employer's direction or required to follow instructions;
- The Low Pay Commission had not intended that anyone who was permitted to sleep could be deemed to be 'working' or engaged in time work;
- In the definition of time work the phrase "awake for the purposes of working" is composite and cannot be broken up into 'awake' and 'for the purposes of working'. Any time not asleep cannot therefore be 'time work';
- The multi-factor test to determine whether someone was 'working' simply by being present before deciding whether they were engaged in time work, is not required under the NMW Regulations and should not be followed;
- If a worker is called on to respond to someone's care needs (or any other duties) when on a shift, that time will count as time work and be subject to the NMW.
This judgment will have an enormous impact on the care sector. The potential liability – 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.
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Although every effort has been made to ensure the accuracy of the information contained in this blog, nothing herein should be construed as giving advice and no responsibility will be taken for inaccuracies or errors.
Copyright © 2021 all rights reserved. You may copy or distribute this blog as long as this copyright notice and full information about contacting the author are attached. The author is Kate Russell of Russell HR Consulting Ltd.
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