Are employees who sleep at a place of work but are ‘on call’, such as carers, entitled to receive the National Minimum Wage for every hour they are available? Even when they are asleep?
This long-running question has recently been considered by the Court of Appeal. It’s an important decision, not least because HMRC have been targeting the care sector and this issue specifically in recent times.
In the case, Ms Tomlinson-Blake provides care and support to two men, both of whom have autism and substantial learning disabilities. She is required as part of her role to perform sleep-in shifts. Her employer, MenCap, did not pay her minimum wage for any time she was sleeping.
MenCap v Tomlinson-Blake
East Riding of Yorkshire Council has responsibility for providing support and care for vulnerable adults including those with learning difficulties. It contracts with the Royal Mencap Society to provide some of that support and care.
The Claimant, Ms Tomlinson-Blake, is a highly qualified and extensively trained Care Support Worker who has been employed by Mencap since 2004. Providing care to two vulnerable adults, her work involves performing a full day followed by a sleep-in shift.
Mencap classified the ‘on-call’ sleep-in shift as ‘unmeasured work’ for the purposes of calculating whether minimum wage should be paid. She therefore received a flat rate of £22.35 for a sleep-in shift together with one hour’s pay of £6.70, making a total payment for a nine-hour sleep-in shift of £29.05, well below the minimum wage if it had been paid for all 9 hours.
Ms Tomlinson-Blake claimed that she needed to be available to respond to any issues during the entire duration of the sleep-in shift. She claimed that this should be classed as ‘time work’ for minimum wage purposes and she should receive the National Minimum Wage for 9 hours.
Ms Tomlinson-Blake was successful with her claim before an Employment Tribunal. This decision was upheld by the Employment Appeal Tribunal.
However, the Court of Appeal held that the only time that counts for national minimum wage purposes during a sleep-in shift is time when the worker is required to be awake for the purposes of working.
This decision will have significant consequences for the care sector in particular.
It is common for workers in the care sector to perform ‘sleep-in’ shifts at the premises for elderly, disabled or vulnerable people, requiring them to be called upon for assistance that may be urgently required during the night. In many cases employees undertaking a sleep-in shift have no other duties when e.g. the person in their care is asleep.
Subject to any further appeal to the Supreme Court, this case now makes it clear that sleep-in workers are not entitled to the National Minimum Wage for any period in which they are sleeping. It is only when they are actually required to undertake work and are awake that qualifies for the National Minimum Wage.
Many employers in the care sector had updated their practices as a result of the earlier decisions and it will be interesting to see whether those changes are now reversed. Employers need to be aware that if they have changed their terms and conditions to allow for National Minimum Wage to be paid during a sleep-in shift, employers will need to formally change terms and conditions again to reverse it. It would be unusual to have a specific clause allowing employers to reduce pay in this way, meaning that most employers will have to seek agreement to the change, try to impose the change unilaterally (which isn’t recommended) or terminate the current contract and offer revised terms.
Changing terms for any new recruits is much simpler.
If you have any queries in relation to ‘on call’ payments or changing terms and conditions or any other HR enquiries please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.