The Court of Appeal today handed down its much-anticipated judgment in the case of Royal Mencap Society v Tomlinson-Blake, addressing the issue of whether staff carrying out overnight ‘sleep-in’ shifts in the care sector are entitled to be paid the National Minimum Wage for the entire duration of those shifts.
The Court of Appeal, allowing Mencap’s appeal against the judgment of the Employment Appeal Tribunal, held that a care worker was not entitled to be paid the NMW for all the time that she was on a ‘sleep-in’ shift.
Among other services, Mencap provides support and care to vulnerable adults on behalf of local authorities. The claimant was employed by Mencap as a care support worker. She was part of a team who worked a mix of day shifts and overnight ‘sleep-in’ shifts at two residential properties, providing 24-hour care to individuals with learning difficulties who lived there.
The ET found that no specific tasks were allocated to her during ‘sleep-ins’ but she was obliged to remain at the homes throughout the shift and to keep out a ‘listening ear’ in case her support was needed. She was required to intervene if it was.
The ET found that the need to intervene was real but infrequent: the claimant had only been required to get up on six occasions in the previous 16 months. The evidence was that she was positively expected to get a good night’s sleep as she might have to work the following day.
The claimant received an allowance for the whole sleep-in shift plus one hour’s pay. In the ET proceedings, she claimed the National Minimum Wage for the full duration of each sleep-in shift.
Section 1 of the Minimum Wage Act 1998 creates a right for workers, in any pay reference period, to be paid an hourly rate of remuneration for work performed.
The National Minimum Wage Regulations 2015 (like its predecessor, the National Minimum Wage Regulations 1999) make provision with respect to the time for which the worker is to be treated as working and therefore entitled to the minimum wage. The appeal concerned one type of work provided for in the Regulations, namely ‘time work’.
Regulation 32 of the 2015 Regulations states:
The effect of regulation 32 (which is akin to a deeming provision) is that if a worker has to be available at a place of work where suitable sleep facilities are provided, the worker is only paid the NMW for the time when they are “awake for the purposes of working”.
However, in several EAT judgments (first Burrow Down v Rossiter [2008] ICR 1172 then a number which followed Burrow Down including Whittlestone v BJP Support [2013] [2014] ICR 275 and Esparon v Slavikovska [2014] ICR 1037), care workers were found to be actually working throughout ‘sleep-ins’ (for example because they could not leave site or were present pursuant to a statutory obligation on the employer) and therefore the question of whether they were deemed to be working pursuant to regulation 32 (or its predecessor) simply did not arise.
The Court of Appeal in Mencap held that on a straightforward reading of the Regulations, workers on sleep-in shifts were only entitled to have their hours counted for NMW purposes when they were (and were required to be) awake for the purpose of performing some specific activity.
The Court held the Report of the Low Pay Commission which had led to the enactment of the National Minimum Wage Act was significant. The Report had recommended that the only time that should count for NMW purposes were periods when workers on a sleep-in shift were “awake and required to be available for work”.
The Court held that it did not follow from its earlier judgment in British Nursing Association v Inland Revenue [2003] ICR 19 – in which bank nurse booking staff were found to be carrying work throughout their night shifts – that workers who were expected to sleep on their night shifts were carrying out work throughout these shifts. It also held that the judgment of the Inner House of the Court of Session in Scottbridge Construction Ltd v Wright [2003] IRLR 21 in which a night watchman was held (following British Nursing) to have being working throughout his night shift was confined to its facts. It also noted that Inner Court had not been referred to the recommendation of the Low Pay Commission referred to above.
On this basis, the Court concluded that the EAT’s conclusion in Burrow Down that workers were actually working throughout their sleep-in shift even if they were sleeping was based on a mistaken understanding of the effect of British Nursing and Scottbridge, was contrary to the clear meaning of the NMW Regulations and was wrong. Regulation 32 makes clear that the only hours that count for NMW purposes are those where the worker is required to be awake in order to perform a specific activity.
A second appeal, Shannon v Rampersad, was heard with Mencap and the Court of Appeal found for the employer on the same reasoning as in Mencap.
Royal Mencap Society v Claire Tomlinson-Blake [2018] EWCA Civ 1641.pdf
This judgment will have an enormous impact on the care sector. The potential historic liability, through a gap in funding – estimated in the hundreds of millions of pounds across the sector – threatened some providers’ future viability had they been obliged to pay their staff the NMW for the whole of sleep-in shifts at residential homes and care homes.
David Reade QC and Niran de Silva appeared for Royal Mencap Society, instructed by James Davies of Simons Muirhead & Burton LLP.
