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While you were sleeping… no requirement for National Minimum Wage to be paid on a “sleep-in” shift unless awake and working

An outcome in the long running case of Royal Mencap Society v Tomlinson Blake (joined with Shannon v Rampersad) has finally been handed down by the Supreme Court, which will have the care sector breathing a huge sigh of relief.

In a brief summary of the main case, Mrs Tomlinson-Blake was a support worker working with vulnerable adults with autism and learning difficulties. During her daytime shifts she was paid at least the National Minimum Wage (NMW), but she was also required to carry out ‘sleep-in’ shifts. During these, she was contractually obliged to spend the night at her place of work. She had no specific tasks to undertake but needed to remain on the premises should anyone on site require her assistance. During the shift, she was provided with sleeping facilities and was paid a flat rate for the shift of £22.35 - and one-hour’s pay at £6.70, below the NMW. This was based on a ‘reasonable expectation’ of the amount of work she may have to undertake during the shift. Any additional time spent working would be paid at normal rates of pay. Whilst undertaking a sleep-in shift, she was required to keep a ‘listening ear’ out, and occasionally had to wake up to resolve any issues (which occurred approximately six times in the 16 months preceding the hearing at an employment tribunal).

Mrs Tomlinson-Blake brought claims to the Employment Tribunal to claim for NMW to be paid for the duration of the sleep-in shifts. She was successful at ET and EAT, but the Court of Appeal allowed Mencap’s appeal that Mrs Tomlinson-Blake was available for work, but not actually working, and therefore not entitled to NMW. Mrs Tomlinson-Blake appealed to the Supreme Court which heard the case in February 2020.

The Supreme Court has now rejected Mrs Tomlinson-Blake’s appeal. Lady Arden delivered the leading judgment, and confirmed that the Low Pay Commission had recommended an allowance for sleep-in shifts, unless the worker was ‘awake for the purpose of working’ when the NMW regulations were originally drafted, and the Government was bound by the Low Pay Commission’s recommendations. The phrase ‘awake for the purpose of working’ must be read as a phrase, and the word ‘awake’ is not to be read on its own. The judgment states “The basic proposition is that they are not doing time work for the purposes of the NMW if they are not awake. However, the regulations go further than that and state that not only are they not doing time work if they are asleep: they are also not doing time work unless they are awake for the purposes of working. So, it is necessary to look at the arrangements between the employer and the worker to see what the worker is required to do when not asleep but within the hours of the sleep-in shift”.

Time work is defined in the 2015 regulations (which repealed the 1999 regulations) and is in reference to the time worked by a worker, and “includes hours when a worker is available, and required to be available, at or near a place of work for the purposes of working unless the worker is at home”

In short, employees are not working whilst they are asleep, and are not eligible for NMW unless they are both awake and working.

What does this mean for you or your business?

This is of great importance to the care sector; if the judgment had gone the other way it would have sent shockwaves throughout the entire industry. However, you must take care to distinguish whether employees are expected to work on a night shift (even if they are able to have a nap when not needed) or whether they are on a sleep-in shift where they are provided with the equipment to sleep, and only awake when needed as this will make a huge difference to whether you are required to pay NMW for their time.

What do you need to be doing now?

If you have workers who engage in sleep-in shifts, ensure that you are keeping a record of when they are asleep at work and when they are woken to work to ensure that they are paid the correct amount and mitigate your risk of claims for unpaid wages.

Recommended reading

Royal Mencap Society v Tomlinson-Blake

 

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.

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