Employment Law Case Update: Sleep-in workers and National Minimum Wage

In the case of Royal Mencap Society v Tomlinson-Blake the UK Supreme Court finally settled the question of whether a worker is entitled to be paid National Minimum Wage (NMW) for the hours they spend sleeping onsite during a ‘sleep-in’ shift.  Our Employment Law team reviews here the outcome of the case and the implications for employers in the care sector.

Mrs Tomlinson-Blake worked for Royal Mencap Society as a care worker from January 2004 until February 2017. As part of her role providing care to two vulnerable adults she performed sleep-in shifts, during which she was entitled to sleep, with no duties other than to “keep a listening ear out” in case of emergency. In the sixteen months before the case went to tribunal, Mrs Tomlinson-Blake was roused from sleep about six times. She was paid an allowance of £29.05 for each sleep-in shift. Mrs Tomlinson-Blake argued that she was entitled to be paid the national minimum wage for each hour of the sleep-in shift.

At the centre of this case was Regulation 32 of the National Minimum Wage Act Regulations 2015. According to Regulation 32, a worker is entitled to be paid NMW for hours they are on call, or “available, and required to be available, at or near a place of work for the purposes of working”. However, there are two exceptions. The first is that a worker is not entitled to NMW for the hours they are on call if the worker is at home (the home exception). Second, a worker is only to be considered ‘available’ if they are “awake for the purposes of working” (the sleep-in exception).

The Employment Tribunal and Employment Appeal Tribunal had previously held that Mrs Tomlinson-Blake and other sleep-in carers were actually working simply by being present at their place of work, and were therefore entitled to be paid NMW.

The UK Supreme Court had to decide whether an employee performing a sleep-in shift was “working,” in which case they would be entitled to be paid the NMW, or was merely “available for work,” in which case they would fall within the sleep-in exception and only be entitled to NMW for the hours they were “awake for the purposes of working”.

The UK Supreme Court, found in favour of Royal Mencap Society, concluding that workers were only entitled to be paid NMW when they were “awake for the purposes of working”. Lady Arden reasoned “If the employer has given the worker the hours in question as time to sleep and the only requirement on the worker is to respond to emergency calls, the worker’s time in those hours is not included in the NMW calculation for time work unless the worker actually answers an emergency call. In that event the time he spends answering the call is included… It follows that, however many times the sleep-in worker is (contrary to expectation) woken to answer emergency calls, the whole of his shift is not included for NMW purposes.” Workers doing a sleep in shift are therefore only entitled to be paid the NMW for time when they are actively awake and performing duties.

This case finally settles a question making its way through the court system for years. The decision will have come as a relief to employers in the care sector, many of whom were facing a bill for several years’ back pay had the decision gone the other way. The ruling also substantially limits how much workers are entitled to be paid for sleep-in shifts. However, employers should note that if their contracts of employment state that they will pay employees the NMW for sleep-in shifts, they cannot reduce the employee’s pay unilaterally without risking the employee resigning and claiming constructive unfair dismissal. 

Unfortunately for care workers, the result of this case is that they are not entitled to be paid anything for sleep-in shifts. Mrs Tomlinson-Blake may have been paid an allowance for performing a sleep-in shift, but there is no legal requirement that employers do this. While this may seem unfair any change to the law will now need to come from Parliament.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.