The Supreme Court recently ruled in the case of Royal Mencap Society v Tomlinson Blake (“the Mencap case”) that “sleep-in” shifts do not count as work for the purposes of the National Minimum Wage Regulations 2015.
This case spells the end of a long running dispute about whether or not workers should be paid the National Minimum Wage (“NWM”) for time spent sleeping during a “sleep-in” shift.
Under the National Minimum Wage Act 1998, it is unlawful for an employer to pay a worker less than the NMW for each hour spent working.
For most workers, the calculation of how many hours they work for NMW purposes will be straightforward. However, for others, such as workers who do “sleep-in” shifts, it is necessary to look at the provisions of the National Minimum Wage Regulations 2015. These regulations contain detailed rules about what time counts and what time is discounted or “excepted” for the purposes of the NMW calculation. It is these exceptions to the NMW calculations that have led to much litigation. In particular the “home” exception and the “sleep-in” exception have proven to be particularly problematic in relation to “on call” workers and “sleep-in” shift or “live-in” workers.
The “home” exception provides that a worker who is not actually working may not count time when they are available for work but actually at home.
The “sleep-in” exception provides that a worker may only count hours when they are “awake for the purposes of working” even if the worker, by arrangement, sleeps at or near a place of work and the employer provides suitable facilities for sleeping.” (Regulation 27 and 32)
The Mencap case concerned the interpretation of the “sleep-in” provision and whether or not two workers who carried out “sleep-in” shifts were entitled to be paid the NMW for the entire shift even though they may be sleeping.
Although dubbed “the Mencap case” in the media, the case in fact concerned the co-joined appeals of Mrs Tomlinson-Blake worked for Mencap and Mr Shannon who worked for a different company called Ramperstad. Both claimed the same thing – that they should be paid the NMW by their respective employer for the entirety of their “sleep-in” shift.
Mrs Tomlinson-Blake was a care support worker who did a regular “sleep-in” shift for specified hours during which she was permitted to sleep but required to remain at the home of the vulnerable adults she was caring for. Although she had no duties to carry out during the shift, her case was that she should be paid the NMW for each of the hours of the “sleep-in“ shift because she was required to “keep a listening ear” in case she was required to attend to an emergency.
Mr Shannon was a care assistant at a residential home and lived in accommodation within the home. He had to stay in the accommodation from 10pm to 7am but he was permitted to sleep during those hours. He claimed he should be paid the NMW for the hours he was required to stay in the accommodation because he said he was “on call”.
The Supreme Court ruled against Mrs Tomlinson-Blake and Mr Shannon – upholding the earlier Court of Appeal’s decision that neither worker was entitled to the NMW for the entirety of their “sleep-in” shift.
The Supreme Court concluded as follows:
- The National Minimum Wage Act 1998 was intended to give effect to the recommendations contained in a report by the Low Pay Commission. This Commission provided a specific recommendation in their report in relation to “sleep-in” workers which was that they should receive an allowance and not the NMW unless they were awake for the purposes of working. The Commission did not contemplate that a person in the position of a sleeper-in could be said to be actually working if they were permitted to sleep. As the government accepted the recommendations of the Low Pay Commission, there was no reason to conclude that the National Minimum Wage regulations were intended to be interpreted differently to the recommendation they were designed to give effect to.
- The special rule for “sleep-in” workers (Regulation 32 of the National Minimum Wage Regulations 2015) was, in the Supreme Court’s view, clear. “Sleep-in” workers are not doing work for the purposes of the NMW if they are asleep. They are also not doing work for NMW purposes if they are awake unless they are awake for the purposes of working. Here, the Court said it was necessary to look at the arrangements in place between the employer and worker to see what the worker is required to do when not asleep but still within the hours of the “sleep-in” shift.
- If the employer has given the worker the hours in question as time to sleep and the only requirement is to respond to emergency calls, those hours are not included in the NMW calculation unless and until the worker actually answers the emergency call. The whole of the shift is not included for NMW purposes.
Points to note and action to take
The ruling has been met by a collective sigh of relief by care providers who faced the prospect of huge numbers of claims for back pay if the workers were successful in their appeal. For employee claimants (whose cases have been stayed pending the outcome of this appeal) and care workers across the country, however, the ruling has come as a bitter disappointment.
Unison, the trade union that supported Mrs Tomlinson-Blake’s appeal, said that it would now push for a change in the law so that sleep-in shifts count as working time for the NMW regulations. It also urged employers not to reduce existing pay rates for care workers who, it pointed out, are already some of the lowest paid workers in the country.
From a practical perspective, although the ruling may have brought legal certainty, it has not necessarily made it any easier for employers to decide how to now pay “sleep-in” workers, particularly if they have been paying the NMW for the entirety of sleep-in shifts whilst awaiting the outcome of this appeal. Action points for employers in the care sector include the following:
- If you already pay the NMW for sleep-in shifts, you will need to consider your contractual obligations to those workers before making any changes to their terms of employment. Ideally, you should seek legal advice before implementing any change because of the risks of claims for breach of contract and unfair dismissal.
- Ensure your systems accurately record the time spent working during sleep-in shifts to ensure that you are paying the NMW for this time.
- If you already pay a fixed rate for “sleep-in” shifts, you do not need to change your approach providing you do not fall below NMW levels for time spent actually working (responding to emergency calls etc).