23rd March 2021
23rd March 2021
On Friday 19 March 2021, the Supreme Court handed down a decision for two cases which determined that sleep-in shift workers were not entitled to be paid the national minimum wage (NMW) whilst asleep and not required to work on a sleep-in shift work.
One of the cases was brought by Claire Tomlinson-Blake a Care Support Worker.
Ms Tomlinson-Blake worked for Mencap, a learning disability charity providing care and support for vulnerable adults. Ms Tomlinson-Blake was part of a team providing 24 hour care for two vulnerable adults at their home and was expected to attend “sleep-in” shifts between 10:00pm and 07:00am. The sleep-in shift totalled £29.05, made up of a flat rate of £22.35 and one off £6.70. Whilst the Support Worker would not be given any tasks, they were required to keep a “listening ear” out for any issues that may require their assistance. In total, Ms Tomlinson-Blake was disturbed during sleep-in shifts a total of six times during a 16 month period.
Ms Tomlinson-Blake lodged a claim at the Employment Tribunal (ET) that she should be entitled to the NMW for the entirety of her sleep-in shift. At first instance, the ET agreed with Ms Tomlinson-Blake in 2016 which was upheld by the Employment Appeal Tribunal (EAT) in 2017.
However, on appeal to the Court of Appeal (CoA), Ms Tomlinson-Blake was unsuccessful. Instead, the CoA held in favour of Mencap stating that Support Workers on a sleep-in shift would only be entitled to the NMW when awake.
Ms Tomlinson-Blake appealed to the Supreme Court which heard her case alongside Mr John Shannon’s case of a similar nature. The Supreme Court concluded that sleeping during the sleep-in shift work did not constitute ‘time work’ for the purposes of the NMW legislation. Instead, it would only be when they were “actively helping [the] client”.
The ruling from the Supreme Court will be a crushing blow for many who work in the care sector as the Supreme Court is the highest authority in the UK and so there is no further route of appeal for them to try and overturn the decision.
The Supreme Court’s decision centred around recommendations from the Low Pay Commission (LPC) to the government when formulating the National Minimum Wages Regulations in 1999 and included in the National Minimum Wage Regulations 2015. Those recommendations being that sleep-in workers should not receive NMW for hours spent sleeping but should receive an allowance.
Some commentators have condemned the decision on the basis that those Support Workers, providing assistance to those most vulnerable in society are constantly on-guard, even during the sleep element of their sleep-in shift.
However, many care organisations will be relieved as the Supreme Court decision brings with it certainty. Edel Harris, Chief Executive of Mencap stated that the finding helped avoid a “potentially catastrophic financial outcome” with some estimates being as high as £400M for back-pay liabilities in the care sector, which would not include the on-going and future costs.
Many have speculated that care organisations will revert to a flat rate with allowance, pursuant to the Supreme Court’s ruling. However, care providers will need to ensure that they offer a competitive rate to ensure they attract talent. Indeed, Mencap stated that they would continue to pay the enhanced rate. Obviously, organisations will need accurate systems in place to capture time spent working and sleeping to avoid allegations of failure to pay the NMW which could lead to fines, criminal convictions and back-pay.
If you would like to discuss any employment issues, arising from this article, that may affect your organisation, please do not hesitate to speak to a member of the employment team on 01325 466 794 and ask for Anthony Willis or Alexander Millward. Alternatively you can contact the team by email at AnthonyW@bhplaw.co.uk or AlexMillward@bhplaw.co.uk.
We also have a court of protection team that can assist with care requirements.