Care workers not entitled to National Minimum Wage when asleep during a sleep-in shift

Under the National Minimum Wage Regulations employees are entitled to be paid the national minimum wage (“NMW”) for any time spent working. There are 4 different categories of work:

  • Time work – paid by reference to the time a worker works;
  • Salaried hours work – paid for a fixed number of hours per week;
  • Output work – paid by reference to productivity;
  • Unmeasured work – catchall provision designed to cover any other working arrangements.

In most jobs, it is easy to identify any periods of work for which individuals ought to be paid at least the NMW. In some roles however this issue is far from straight forward, with particular problems arising for night shift workers who are required to complete “sleep-in” shifts whereby they are required to be at or near their place of work but during which they may sleep for some or all of that shift.

The Supreme Court has this month handed down its decision in two joined appeals which considered whether care workers who complete sleep-in shifts are entitled to the NMW for their whole shift or just the time they spend awake carrying out any duties.

Facts of the case

The Supreme Court considered appeals in two cases; Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad.

In the Royal Mencap appeal, Mrs Tomlinson-Blake was employed by Mencap as a care support worker. She was required to work dayshifts, morning shifts and sleep-in shifts. Dayshifts and morning shifts were part of her salaried hours and she was paid accordingly. She received a flat rate of £22.35 together with one hour’s pay for any sleep-in shifts.

When on a sleep-in shift she had to remain at the property to keep a “listening ear” out in case her support was needed. She had her own bedroom and was expected to intervene to deal with incidents that required her assistance or to respond to requests for help. Over the preceding 16 month period she had only been called upon to help on six occasions. In Mrs. Tomlinson-Blake’s case she claimed she was entitled to the NMW for each hour of her sleep-in shift.

In the Shannon case, Mr Shannon worked at a residential care home as an on-call night care assistant. He was required to be on site in the staff flat from 10pm until 7am. He was able to sleep during those hours but was required to respond to any requests for assistance from the night care workers on duty. In return he received free accommodation in the flat and all utilities provided for free together with a fixed weekly payment.  He slept in the flat every night and in practice he was rarely asked to assist the night care workers. Mr. Shannon claimed that he was entitled to the NWM for the whole period between 10pm and 7am for 365 days of the year.

Decision of the Employment Tribunal, EAT and Court of Appeal

Mrs Tomlinson-Blake succeeded at first instance and the Employment Tribunal found that during the sleep-in shift she was performing time work whether she was awake or not and therefore she was entitled to the NMW for the whole of the sleep-in shift. On appeal the EAT considered whether Mrs Tomlinson-Blake was working throughout the entire shift and they were satisfied that she was working by simply being present and therefore she should have received the NWM for the whole of a sleep-in shift. Mencap appealed to the Court of Appeal on the basis they argued she should only receive the NMW for time spent actually working and for time spent asleep. Mencap’s appeal was upheld. The Court of Appeal determined that during a sleep-in shift Mrs Tomlinson-Blake slept by arrangement at her place of work and that she was provided with suitable facilities for doing so. As such it followed that she was to be treated as being available for work during those hours but that she was not actually working. Consequently she was only entitled to the NMW for those hours when she was required to be awake for the purposes of providing emergency assistance.

Mr Shannon’s claim failed in the Employment Tribunal and his appeals to the EAT and the Court of Appeal were also unsuccessful. The courts considered that Mr Shannon was not working during his shift and was instead only available for work which meant he was only entitled to the NWM for the time spent assisting the night care worker.

Supreme Court’s decision

The Supreme Court unanimously rejected both Mrs. Tomlinson-Blake and Mr Shannon’s appeals. They confirmed that workers are only entitled to the national minimum wage for time spent actually working and that while asleep during a sleep-in shift workers are simply available for work and  are therefore not entitled to the national minimum wage for these hours. It follows that, no matter how many times the sleep-in worker is woken to deal with any emergency calls for assistance, the whole of the shift is not included for NMW purposes. Of course, sleep-in workers are entitled to be paid at least the NWM for time spent awake for the purposes of working.

Comment

This decision will be welcomed by care providers as it provides much needed clarity in this area and significantly reduces care providers potential liabilities in relation to national minimum wage claims from care workers who undertake sleep-in shifts.

Having said that, decisions in these type of case are always fact sensitive and will involve a consideration of what the worker is required to do when awake within the hours of the sleep-in shift and the principle purpose and objective of the arrangement. To be a sleep-in worker the primary purpose of the arrangement must be for the employee to sleep at or near the place of work and the obligation to respond to any disturbance must be subsidiary to that purpose. As such, not every worker who is permitted to take a nap between tasks will be a sleep-in worker and, if they do not fall within that category, the time spent on that shift may be classed as time spent working and consequently entitle them to the NMW.

Sarah Scholfield

Author Sarah Scholfield

Sarah is a Solicitor in our Employment Team. Sarah has extensive experience advising employers on a wide range of employment matters including unfair dismissal, discrimination and whistle blowing claims, drafting contracts of employment and dealing with disciplinary/grievance matters. She also regularly advises employees on settlement agreements, disciplinary/grievance matters and unfair dismissal. She is a member of the Employment Lawyers Association. Sarah has been described as “extremely knowledgeable… diligent, sharp” whilst retaining “that all important client focus”.

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