Royal Mencap Society (Respondent) v Tomlinson-Blake (Appellant)
Two “sleep in” care workers appealed to the UK’s highest Court, the Supreme Court, seeking to overturn the decision that they are not entitled to the national minimum wage (NWM) for the duration of their “sleep in” shift. A “sleep in” shift typically means that the employee is entitled to sleep for some or all of the duration of their shift, only to respond when necessary (e.g in matters of emergency).
NMW is a minimum rate per hour that all employees must receive which is fixed by the Government depending on age. When calculating the NMW this is dependent on whether the work is determined to be salaried hours work, time work (hourly), output or unmeasured (meaning none of the above).
Salaried hours work means where a worker performs their duties under a contract for a set number of hours in a year in exchange for an annual salary which is paid in equal weekly or monthly instalments. Time work is often referred to as hourly work as it is paid according to the number of hours worked.
The law provides exceptions when calculating the time that is counted as working for the purposes of defining an individuals per hour rate of pay. In the case of employees who are on-call whilst sleeping, they will only be considered to be working for the purposes of calculating the NMW when they are “awake for the purpose of working”.
The Supreme Court unanimously dismissed the appeals stating that the expression “awake for the purpose of working” is a single phrase and the word “awake” is not to be read on its own. It was concluded that they are not doing time work for the purposes of the NMW if they are not awake and that in fact, the regulations go one step further stating that they are not doing time work unless they are awake for the purposes of working. Hence, a worker could be awake during a period where they are permitted to be asleep, but if they are not awake and working during these hours, this is not taken into account for the purpose of the NMW.
Edel Harris, CEO of the Royal Mencap Society has stated that “Mencap contested this case because of the devastating unfunded back pay liabilities facing providers across the sector. This was estimated at £400 million. Sleep-ins are a statutory care service which should be funded by Local Authorities, and ultimately Government. It is no exaggeration to say that if the ruling had been different, it would have severely impacted on a sector which is already underfunded and stretched to breaking point. Some providers would have gone bust and, ultimately, the people who rely on care would have suffered.”
Clearly, while those workers affected will be disappointed with the ruling, this will be a huge relief to care providers who will not be faced with liability for back-pay or a need to alter their contractual terms for the payment of sleep-in shifts.
What does this mean for “sleep-in” workers going forward?
“Sleep-in” workers are not “working” for the purposes of Regulations 30 of the National Minimum Wage Regulations 2015 and instead are “available for work” under Regulation 32. During hours in which “sleep-in” workers are sleeping they are not entitled to the NMW and should instead receive an allowance.
What does this mean for employers of “sleep-in” workers?
Employers need to be careful to differentiate between when employees are expected to work on a night shift, even if they are allowed to sleep during times where there is a downturn in work and when employees are on a “sleep-in” shift where they are permitted to sleep only to wake when required. There is a fundamental difference between the two and depending on where the determination lies will dictate whether the NMW is due to be paid.
It is strongly advised that employers keep records of when their employees are asleep at work and when they are awake and working to reduce risk of claims for unpaid wages.
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