To Pay Or Not To Pay, That Is The Question
After the Supreme Court made its judgment, we now know the answer is ‘not’. Why and what does it mean for the future?
On 19 March 2021 the Supreme Court made its judgment in the landmark case of Tomlinson-Blake v Royal Mencap Society which was originally heard in February 2020. The case concerned whether those who undertake ‘sleep-in’ shifts in the care sector are entitled to be paid the national minimum wage (NMW) for the entire duration of those shifts. The Supreme Court held that care workers are not entitled to be paid the NMW for the entire time they were on a ‘sleep-in’ shift.
Mrs Tomlinson-Blake was employed as a care support worker by Royal Mencap Society which provides 24 hour care for vulnerable adults. Mrs Tomlinson-Blake was required to work a ‘sleep-in’ shift from 10:00pm to 7:00am. During her ‘sleep-in’ shifts she was not required to complete any specific tasks. She was, however, required to stay on the premises and keep a “listening ear” out during the night in case she was needed to provide care and support.
During the ‘sleep-in’ shifts where Mrs Tomlinson-Blake was not required to provide care and support, she was allowed to sleep throughout the shift. Mrs Tomlinson-Blake was paid a flat rate for each ‘sleep-in’ shift of £22.35, plus one hour’s pay of £6.70 equating to £29.05 in total, for the entire shift. Mrs Tomlinson-Blake claimed back pay on the basis that she should have been paid the NMW for each hour of a ‘sleep-in’ shift because she was ready and available to work on the premises.
The Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT), upheld Mrs Tomlinson-Blake claim and ruled that she was entitled to receive NMW for the full duration of her sleep-in shifts. Mencap appealed their decision.
Mencap argued that, in accordance with the legislation, Mrs Tomlinson-Blake should not be paid NMW backpay. Mencap’s biggest concern, should Mrs Tomlinson-Blake have been successful, was not only the backpay due to their employees but that of the care sector as a whole. A sector that is already grossly underfunded. Had Mrs Tomlinson-Blake’s claim been successful the care sector would have had a potential liability to pay over £400 million in backpay.
The Supreme Court’s Judgement and reasoning
The Supreme Court’s decision that Mrs Tomlinson-Blake was not entitled to receive the NMW for ‘Sleep-in’ shifts was based on their interpretation of the Minimum Wage Act 1998 and the National Minimum Wage Regulations 2015, which governs the times a worker is to be treated as working and consequently entitled to the NMW.
Regulation 32 of the 2015 Regulations states:
“(1) Time work 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.
(2) In paragraph (1), hours when a worker is ‘available’ only includes hours when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping.” (Emphasis added)
In previous EAT judgments, such as that of British Nursing Association v Inland Revenue  and Burrow Down v Rossiter , workers had been found to be actually working throughout ‘sleep-in’ shifts because they had to remain on the premises and be available for work. However, the Supreme Court held that the correct interpretation of regulation 32 is that if a worker has to be available at a place of work where they are able to sleep, the worker is only paid the NMW for the time when they are “awake for the purposes of working”.
From reviewing the judgements of the ET, EAT, Court of Appeal and the Supreme Court, it appears that the decision that workers are only entitled to the NMW for time actually awake for the purposes of work, seems to be based on three main points:
- In a simple grammatical sense it is hard to interpret being asleep as working, as Underhill LJ had said in the Court of Appeal.
- The definition of ‘available’ for work in regulation 32(2) is defined as “hours when the worker is awake for the purposes of working” and as such there is no entitlement to the NMW whilst actually sleeping.; and
- It was Parliament’s intention that time asleep was outside the scope of the NMW. Instead ‘sleep-in’ shifts were meant to be dealt with by a form of allowance or percentage of the NMW agreed between employees and employers. This assumption is supported by the Low Pay Commission’s first and second reports of the National Minimum Wage. The second report can be found here.
It is important that care providers who currently pay the NMW for ‘sleep-in’ shifts and now want to reduce this in light of this ruling, know that they cannot simply cut existing care workers’ pay for sleep-in shifts. Any change in contractual terms require employer and employee consultation and must be carried out in accordance with contract and employment law considerations. Failure to do so will result in the employer being susceptible to claims for unlawful deductions of wages, breach of contract and constructive unfair dismissal claims.
On the other hand, this landmark decision means that employers can continue to pay their carers for ‘sleep-in’ shifts by way of a flat-rate shift payment or NMW percentage, with NMW only being payable when the worker is actually awake and working.
Had the Supreme Court ruled in favour of Mrs Tomlinson-Blake then care providers and charities across the care sector would have faced liability of six years’ worth of backpay and could have been financially ruined.
It is important to note that should a carer wake up and provide care and support services during a ‘sleep-in’ shift, they are entitled to receive the NMW for the time awake and working. As such, it is paramount and good practice for carers and their employers to have a sufficient and detailed system in place, to record the times a carer is awake and working during a ‘sleep-in’ shift.
If you have an employment law issue and need professional legal advice then contact me directly via 01752 203500 or email kayleigh.arthurs@GAsolicitors.com.