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?
Royal Mencap Society v Tomlinson-Blake
The Supreme Court has ruled that ‘sleep-in shift time’ does not qualify as work in any sense of the Working Time Regulations, drawing to a conclusion on this long-debated issue.
We previously reported on the Court of Appeal stage for this case here. Ms Tomlinson-Blake provided support in a residential setting to two men with autism and substantial learning disabilities. She was 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.
Previous decisions had relied on the case of British Nursing v HMRC, where the Tribunal ruled that there could be no distinction between the work performed by day and night nurses; the nurses operated a 24hr booking line as part of their duties. Day nurses were paid hourly and night nurses were only paid a certain amount per shift as they were deemed as not working when they are waiting for phone calls. The ET and EAT ruled that night nurses were working for their whole shift and should therefore be paid NMW. All judges in the Supreme Court decided that this case law can no longer be followed as it was not a correct statement of law for sleep-in shifts, seemingly drawing a line under past and future cases on this issue.
There was a slight difference of opinion however on why this should not be followed, and so the findings in the Tomlinson-Blake case will not be binding case law and similar legal arguments on different facts could be brought in future.
The Supreme Court’s main findings were:
- For the purposes of deciding whether a person is ‘working’ under the Minimum Wage provisions, it does not matter that a worker is at their employer’s direction or required to follow instructions;
- The Low Pay Commission’s initial report was important in interpreting what should be payable and it had not intended that anyone who was able to sleep should be deemed to be ‘working’ or engaged in ‘time work’, it had instead recommend that an allowance be agreed between the employer and the employee for time when they were not working;
- 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’;
- If a worker is actually 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 National Minimum Wage.
You can read the case in full here.
As set out in our previous discussions of this case, this appeal from the Supreme Court 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 awake and required to undertake work that will qualify for the National Minimum Wage.
This decision will have significant consequences for the care sector in particular.
If you are an employer in the care sector and have updated your practices as a result of the earlier decisions, you may want to reverse those changes. 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, they will need to formally change terms and conditions again to implement this decision. It would be unusual to have a specific clause allowing employers to reduce pay to reflect the decision, 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. Depending on the number of employees affected by any change to terms, S188 of the Trade Union and Labour Relations (Consolidation) Act 1992 may also be triggered requiring employers to consult on a collective basis.
If you have any queries in relation to this case or changing terms and conditions or any other employment law or HR queries, please contact our Employment Team on 01228 522600 or 01524 548494.