Sleep-in on the job?
Justine Riccomini and Dawn Dickson explain what happened when the Supreme Court handed down its decision in Mencap.
Overview
Employers and the courts have never found it easy to apply the National Minimum Wage (NMW) Regulations to a wide range of different circumstances and job roles in various sectors, as the terminology, calculations and exemptions involved are extremely complex. Conflicting court decisions have also muddied the waters.
A particular area of difficulty of late has been the so-called “sleep-in” shift – i.e. where a person who works in a care environment, or perhaps in a security role or even in IT, leaves their own home to go to the employer’s premises and is, to all intents and purposes, “at work”. Whilst there, the individual is permitted to either sleep, or entertain themselves whilst awake, if their actual presence, skills application and knowledge are not needed for some or all of the shift. Is this person “working” for the purposes of being entitled to receive NMW?
In the social care sector, night shift workers are often required to man premises where there are residents who need 24-hour care provision. However, those night shift workers may be required to keep a “listening ear” out in case assistance is required but do little else when the residents are for the most part asleep themselves.
In the conjoined appeal hearing of Royal Mencap Society (Respondent) v Tomlinson-Blake (Appellant) and Shannon (Appellant) v Rampersad and another (T/A Clifton House Residential Home) (Respondents) [2021] UKSC 8, the last word on what constitutes working time for the purposes of NMW was handed down by the Supreme Court.
The level of pay will of course also determine the costs to the employer and these need to be well understood so that the employer can properly budget for such overheads. Arrears of pay awards often come with penalties and other sanctions, so employers need to ensure they are on the right side of the NMW Regulations at all times to avoid unwanted costs and reputational damage.
When is someone working for NMW purposes?
The rules around sleep-in pay in an NMW context have developed over time. We learned in Mencap that they originated in the first report of the Low Pay Commission (LPC) – which oversees the NMW regulations and calculates the level of the NMW to recommend to Government each year.
Historically it has been common practice in the care sector for employers to pay NMW for time spent actually carrying out care duties and paying a fixed rate allowance for the rest of the shift. This is in line with the original 1998 recommendations of the LPC. However, the terminology was unclear, and it was not easy to distinguish between when someone was:
- Working as soon as they arrived until the time they left after finishing the shift;
- Working even if they were asleep;
- Working even if awake but not actually working – just keeping a “listening ear” out;
- Actively working
…for the purposes of earning the NMW.
The facts
Mrs Tomlinson-Blake worked as a care worker who undertook a night shift, as well as various other day shifts, supporting two vulnerable adults in their own home. Mrs Tomlinson-Blake was required to remain at her place of work during the entire sleep-in shift and keep a “listening ear” out in case she was required to handle any emergencies or carry out care duties during the night. Mrs Tomlinson-Blake had her own room, and over a two-year period only attended incidents on around 16 separate occasions. Her work was categorised as “time work” and, for each night shift, she was paid an allowance plus one hour’s pay at the NMW rate. She brought proceedings to recover arrears of wages on the basis that she was entitled to be paid the NMW for each hour of her sleep-in shift.
Mr Shannon, was a night care assistant and was provided with free living accommodation in a residential care home, in addition to a fixed amount per week. He was required to be present at the home overnight, but was permitted to sleep, on the proviso he responded to any incidents or other requests for assistance by the night care worker who patrolled the care home on night duty. His work was salaried work. Mr Shannon brought proceedings to recover arrears of salary on the basis that he was entitled to be paid the NMW for each hour that he was required to be on-call.
The Supreme Court decision
The Supreme Court unanimously dismissed the workers’ appeals taking a purposive approach to the legislation. The Court paid particular attention to the LPC recommendations, considering the original intention of the legislation and subsequent case law arising from it. Overruling some key cases, it decided that the meaning of the sleep-in provisions is that, if the worker is permitted to sleep during the shift and is only required to respond to emergencies, the hours in question are not included in the NMW calculation for time work or salaried hours work unless the worker is awake for the purpose of working.
As such, neither Mrs Tomlinson-Blake nor Mr Shannon were entitled to NMW for their full night shift.
Conclusion
This judgment has been something of a blow to other care workers whom, whilst we now appreciate are ‘Key Workers’, are some of the lowest paid workers in the UK, the care sector was already feeling the pressure of cuts from Local Authorities and were said to be at breaking point. If the appeals had been successful, there would have been a huge knock-on effect for the sector and it was unlikely that the estimated £400 million in pay arrears, and £200 million per annum going forward could have been sustained in the current climate.
Hopefully, the outcomes of these cases will prompt the government to carry out a comprehensive review of the care sector as a whole as it promised in its election manifesto – and perhaps ensure fairer outcomes for all as a result.
Dawn Dickson is a partner at Eversheds Sutherland and can be contacted on DawnDickson@eversheds-sutherland.com.
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