Employers are not required to pay ‘sleep-in workers’ National Minimum Wage for time they are present but not awake for the purpose of working: : Royal Mencap Society v Tomlinson-Blake  UKSC 8.
In a long running legal challenge, the Supreme Court has ruled that employers are only required to pay sleep-in workers National Minimum Wage for time they are awake for the purpose of working. For time asleep, sleep-in workers are not entitled to National Minimum Wage.
The National Minimum Wage (‘NMW’) Regulations 2015 (the ‘Regulations’) stipulate how a worker’s hourly rate is calculated to establish whether what they are paid equates to the NMW.
The effect of the Regulations is such that where a worker is available at or near a place of work, unless they are at home, that worker is entitled to be paid NMW for the hours they are awake for the purpose of working. This is considered ‘time work’ for NMW purposes.
Carers and wardens can, as required by their employers, work sleep-in shifts whereby they must be available at or near their place of work, but can be asleep for some, or all of their shift.
The question arose as to whether these workers should be paid National Minimum Wage (‘NMW’) for the duration of these shifts.
The appeal concerned two individuals. Mrs Tomlinson-Blake who cared for two vulnerable adults during specified hours. Mrs Tomlinson-Blake slept at their home during the specified hours and was required to attend to an emergency if there was one. She did not have any other duties and was only required to attend the adults six times over a 16-month period. Mr Shannon was an on-call night care assistant living in accommodation at, and provided by, a care home. He was required to assist the night care worker between 10pm and 7am should he be called upon. He was permitted to sleep during that period.
In the Employment Tribunal (the ‘ET’) Mrs Tomlinson-Blake was successful. The ET concluded that Mrs Tomlinson-Blake was performing ‘time work’ and therefore entitled to be paid NMW for time during the sleep-in shift whether she was awake or not. Mr Shannon was not successful, the ET found that he was not working throughout his shift and that his accommodation was his home.
The Employment Appeal Tribunal (the ‘EAT’) agreed with the ET, and on appeal, the Court of Appeal dismissed Mr Shannon’s appeal but allowed the appeal in relation to Mrs Tomlinson-Blake. The Court of Appeal concluded that for NMW purposes, only the time in which sleep-in workers were awake for the purposes of work counted. The Court of Appeal acknowledged that there would be cases where workers were more than simply available for work on their shift and were required to perform specific tasks, and in such cases all the hours of the shift would be included in the calculation for NMW purposes.
The Supreme Court agreed with the Court of Appeal and held that:
“The sleep-in worker who is merely present is treated as not working for the purpose of calculating the hours which are to be taken into account for NMW purposes.”
In coming to that decision, the Supreme Court referenced a recommendation from the First Report of the Low Pay Commission on the National Minimum Wage (Cm 3976).
The recommendation at paragraph 4.34 stated:
“For hours when workers are paid to sleep on the premises, we recommend that workers and employers should agree their allowance, as they do now. But workers should be entitled to the National Minimum Wage for all times when they are awake and required to be available for work.”
The recommendation was highly relevant because before making the Regulations, the Secretary of State was required to refer to the Low Pay Commission on certain matters including what method or methods should be used for determining the hourly rate at which a person is to be regarded as remunerated. The Low Pay Commission’s recommendation was accepted by the government and therefore the Supreme Court proceeded in the appeal on the basis that the purpose of the Regulations was to implement the recommendation.
The judgement of the Supreme Court overruled British Nursing Association v Inland Revenue  EWCA Civ 494 in which the Court of Appeal held that workers, who were at home answering infrequent calls between 11.30pm and 5.30am as part of a call centre service, and slept in quieter times were working for NMW purposes. However, while the Supreme Court overruled British Nursing, the Supreme Court judges gave different reasons for doing so which is relevant when considering the implications of this case.
The judgement has been welcomed by the care sector. Edel Harris, Chief Executive of the Royal Mencap Society, said:
“Support workers within Mencap and across the sector do an exceptional job. They are dedicated in their care for people with a learning disability and should be paid more. They are care workers on the coronavirus front line and deserve better recognition in all forms. The Supreme Court in its judgment rightly recognises this. But we understand that many hard-working care workers will be disappointed by its ruling.”
“Mencap contested this case because of the devastating unfunded back pay liabilities facing providers across the sector. This was estimated at £400 million.”
There were a great many number of claims for underpayment and back pay dating back up to six years which were stayed pending the judgement in this case, and expected to be concluded following this judgement.
The judgement does not however preclude the possibility of further litigation, in particular in relation to home working and in a case factually similar to British Nursing, concerning workers answering calls and whether time not doing so is spent ‘working’ for NMW purposes. As such, careful attention will need to be paid to the frequency of work and what time is spent working for NMW purposes.
Employers that are considering changes to arrangements with workers following the judgement must consider carefully the factual circumstances and whether seeking the workers’ consent is necessary. If employers don’t get these decisions correct they may be open to liability in relation to deductions from wages, and underpayment.
We would recommend seeking advice from HR/legal professionals before taking any steps following the judgement, please contact one of our employment team for further information.