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You Snooze, You Lose (Judgment on National Minimum Wage for Care Workers)

23 March 2021

Care providers who require staff to carry out ‘sleep-in’ shifts will breathe a sigh of relief after receiving the Supreme Court’s long awaited decision in Royal Mencap Society v Tomlinson-Blake, finding in favour of Mencap. Judgment was handed down last Friday, 19 March 2021.

Judgment: The judges of the Supreme Court made a unanimous decision that Workers who perform sleep-in shifts will not be entitled to National Minimum Wage (NMW) for the entire shift, but only hours that they are ‘awake for the purposes of working’. Judge, Lady Arden went on to say (citing a recommendation first made in 1998 by the Low Pay Commission), that sleep-in workers should receive an allowance and not the NMW unless they are awake and is actually called on to respond to someone’s care needs (or any other duties) during a shift.

Background: This decision will provide welcomed clarity for care providers after an extensive four year legal battle. Claire Tomlinson-Blake (‘The Claimant’) worked for Mencap as a care support worker providing support to individuals with learning difficulties across two residential properties. As the learners needs required 24 hours support, the Claimant was part of a team who provided a mixture of day shifts and ‘sleep-in’ shifts.

In the Employment Tribunal (‘ET’) proceedings the Claimant claimed NMW for the entire duration of the sleep-in shift. The Claimant ordinarily received an allowance, plus one hours’ pay for the duration of the shift meaning that the amount of remuneration she would receive would not equate to NMW for every hour of the sleep-in shift.

The ET established that whilst the Claimant was not required to undertake specific tasks, she was required to remain at the care home and provide support in the event that the service user required care.  However, she was encouraged to get a good night’s sleep, and it was established that the requirement for her support and intervention during the sleep-in shifts over the previous sixteen months was very infrequent, finding that she was only required to provide assistance on six occasions.

What was considered: The provisions provided for in the National Minimum Wages Act, 1998 entitles workers to receive an hourly rate for work performed. Furthermore, the National Minimum Wage Regulations 2015 (‘NMWA 2015’) makes provisions with respect to the time for which the worker is to be treated as working, and therefore entitled to the NMW. This case has given rise to much debate with the key question being whether the Claimant should be entitled to NMW for each hour of the sleep-in shift.

The Supreme Court’s unanimous decision was that Support Workers are only entitled to have their hours counted for NMW when they are awake for the purposes of working. The differences being that the support worker is paid NMW for actual work performed and not simply being available to work.

This is a welcome decision following the case of British Nursing v HMRC where it was previously held that a worker could be ‘working’ even if not required to be awake and therefore should be entitled to NMW for the hours spent during the ‘sleep in’ shift. The new ruling fortunately means that care providers are no longer bound by this decision.

Summary: The main findings from this case are:

• Provisions in existing NMW legislation means that workers are not entitled to count their sleep in shifts as ‘time worked’ or part of their salary hours unless they are awake for the purpose of working;
• That it is incorrect to assume that if a worker is required to be available during specific hours, that these hours are to be deemed ‘working time’;
• That it is irrelevant that the a worker is under the employers NMW provisions;
• That any time asleep cannot be deemed as ‘time worked’ instead the worker must be ‘actively working’ to be entitled to NMW.

Moving forward: Had the judgment been awarded in favour of the Claimant this could have been a financial catastrophe for care providers who engage workers in regular sleep in shifts, potentially resulting in claims for billions of pounds of back payment. The Judgment will therefore provide assurances to care providers that no claims can be made for back payment of underpayment of wages, and furthermore that staffing costs will be reflective of hours that staff are actually working – a welcomed protection to the care sector.

For detailed advice relating to this landmark case, or for any other advice relating to NMW, changing pay provisions, regulatory requirements or any other aspects relating to care, our employment advisors at Redkite have a wealth of knowledge of advising clients within the care sector. You can find our contact details here.