19th March, 2021
No National Minimum Wage for sleeping ‘sleep-in’ workers
The long-awaited Supreme Court decision on ‘sleep-in’ worker pay has today been handed down in the Judgments in the linked cases Royal Mencap Society (Respondent) v Tomlinson-Blake (Appellant) and Shannon (Appellant) v Rampersad and Others (Respondent).
After a full year since the hearing, and following the sad passing of Lord Kerr, the Supreme Court has finally released the Judgment of the four remaining Judges, confirming that residential care workers who ‘sleep in’ are not entitled to the national minimum wage (“NMW”) for time that is not spent actually awake performing some specific activity.
This Judgment will be a relief for employers in the residential care sector particularly but may come as quite a blow to care sector workers and Unions.
Mrs Tomlinson-Blake provided residential care to two adults with autism and substantial learning difficulties. Her usual work pattern involved a day shift and a morning shift, for which she received appropriate salaried remuneration. She also carried out a 10pm – 7am sleep-in shift, for which she received a payment of £22.35 plus one hour’s pay of £6.70.
Although Mrs Tomlinson-Blake didn’t have to carry out any specific work, she had to keep out a “listening ear” for emergencies, in her own words. On the few occasions, she had to provide night-time support, 6 times in a 16 month period, the first hour was not remunerated but she received payment in full for any additional hours thereafter.
Her claim in the Employment Tribunal was successful – determining that she was entitled to be paid for all hours whilst she was ‘sleeping-in’, which were held to be working time for NMW calculations. The Employment Appeal Tribunal supported this decision, but on further appeal by Mencap, the Court of Appeal overturned it.
The Supreme Court has now followed the Court of Appeal’s Judgment.
Mr Shannon was employed as an “on-call night care assistant”. He was paid £50 a week (later £90) with free accommodation in the studio within the Clifton House care home. He was required to be in the studio from 10pm to 7am and was able to sleep during those hours but had to respond to any request for assistance by the night care worker on duty at the home.
In practice, he was very rarely asked to assist the night care worker, though he occasionally had day jobs as a driver.
His claim was that he was entitled to have all hours between 10pm and 7am counted as salaried hours work for minimum wage purposes for 365 days per year, amounting to almost £240,000 in arrears. His claim has been dismissed by all levels of Tribunal and Court and the Supreme Court have now affirmed the decision that Mr Shannon is not entitled to NMW.
The Supreme Court referred to the National Minimum Wage Regulations 2015 and the National Minimum Wage Act 1998. The regulations provide that, in general, time when a worker is required to be available at or near his employer’s place of business for the purposes of doing time work, is included in calculating time work and salaried hours work but there are exceptions: (1) where the worker is permitted to sleep during the shift and (2) where the worker is at home.
In considering the meaning of this legislation, Lady Ardern gave weight to recommendations by the Low Pay Commission (“LPC”), a statutory body set up by the National Minimum Wage Act 1998, with relevant industry knowledge and expertise.
The LPC recommendation was published in their first report and has been repeated in subsequent reports, to the effect that sleep-in workers should receive an allowance and not the NMW unless they are awake for the purposes of working.
Lady Ardern, therefore, noted her view that previous decisions about sleep in worker pay, including Burrow Down Support Services Ltd v Rossiter  ICR 1172, British Nursing Association v Inland Revenue  EWCA Civ 494 (“British Nursing”) and Scottbridge Construction Ltd v Wright  IRLR 21 were wrongly decided and should be overruled.
Accordingly, sleep-in workers are not entitled to receive NMW for any shifts slept through, though if they are required to carry out any work during the night, as before, their time should be paid for and NMW rules will apply.
“This long awaited judgment, announced on #WorldSleepDay comes as a welcome decision for many employers in the care sector. Employers should be ensure that time spent working on sleep in shifts is recorded in order that NMW is paid for that proportion of the shift”
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