Care workers are not entitled to minimum wage for sleep-in shifts, rules Supreme Court
19th March, 2021
Today, the Supreme Court has announced its long awaited judgment on the Royal Mencap Society v Tomlinson-Blake case which focussed on whether sleep-in carers are entitled to be paid at least National Minimum Wage (NMW) while sleeping on shift.
Upholding the Court of Appeal decision, the Supreme Court held that the employees engaged in sleep in shifts were not entitled to NMW for the entire shift.
Background
Key findings by the Supreme Court were as follows:
- For the purposes of deciding whether a person is ‘working’ for NMW purposes, the fact that a worker is at their employer’s discretion or required to follow instructions does not matter;
- There had been no intention by the Low Pay Commission to classify anyone who was permitted to sleep to be deemed ‘working’ when they first reported to government prior to the 1999 version of the regulations;
- Within the definition of ‘time work’ the inclusion of the phrase “awake for the purposes of working” cannot and should not be broken up into ‘awake’ and ‘for the purposes of working’. Any time not asleep cannot be classed as ‘time work’;
- The multi-factor test set by Mrs Justice Simler in the EAT to determine whether someone was ‘working’ by the simple fact of their presence, before deciding whether they were engaged in ‘time work’, is not required under the NMW regulations and therefore, should not be followed in these circumstances; and
- Where a worker is actually called to respond to a patients care needs (or any other duties) when on shift, that time will be ‘time work’ and subject to NMW.
What does this mean?
This will bring a huge sigh of relief for the care sector as a whole, through healthcare and social care providers, along with charities and local authorities whose workers regularly engage in ‘sleep-in’ shifts. This could have brought a number of backdated claims for NMW underpayment and fines for breach of the regulations should the Supreme Court have sided with Ms Tomlinson-Blake. With Mencap itself claiming such a decision would bankrupt small care providers and lead to a £400m bill in backdated claims.
We will be providing further details on this case next week as we breakdown the decision further.
Please click here for a link to the full judgment.
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Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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