Date: 22/03/2021
Author: Leah Ellison, Trainee Solicitor, Employment and HR Services Team
Today, Lady Arden handed down the long-awaited judgment of the Supreme Court in the joined cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home).
The cases, which were heard by the Supreme Court in February 2020, concerned a fairly typical arrangement with two care workers (Tomlinson-Blake and Shannon) who were required to spend the night at, or near, their workplaces by their respective employers.
The Claimant in the Mencap case was permitted to sleep at a service user’s home, but she was expected to keep a “listening ear” and provide support if required during the night. She was not allowed to leave the premises. The Claimant was paid a fixed rate for the sleep-in shift and then paid a further sum if she was awake and required to work for more than one hour.
The Claimants, in separate cases, argued that they were being underpaid and that they were entitled to be paid the national minimum wage (NMW) for all of the hours spent on the sleep-in shift. The cases were combined at the appeal stage.
Overturning earlier decisions of the Employment Appeal Tribunal, the Court of Appeal previously held in July 2018 that care workers carrying out sleep-in shifts are not entitled to the NMW for the entirety of the shift. It held that they are only entitled to be paid the NMW when they are required to be awake and working. Tomlinson-Blake and Shannon subsequently appealed to the Supreme Court.
The Supreme Court has today unanimously dismissed the appeals and upheld the Court of Appeal decision that workers are only entitled to have their hours counted for NMW purposes when they are awake and required to be available for work. Workers are not entitled to the NMW for the entirety of their sleep-in shifts if they are generally expected to be able to sleep.
In reaching its decision, the Supreme Court took particular note of the report of the Low Pay Commission’s report, which illustrated that the Commission had never intended sleep-in shifts to be eligible for the NMW when they first reported to the government prior to the original NMW Regulations being introduced.
If, however, a care worker is required to “work” by responding to a service user’s care needs or required to perform any other duties during a “sleep in” shift, that time will count as “time work” and be subject to the NMW.
Whether or not workers are entitled to the NMW for shifts where they are permitted to sleep for some or all of that shift will still very much be fact-specific. It is important to remember that in these cases, it was significant that the claimants were “expected” to sleep throughout their shifts. If workers are “expected” to be awake for most of the night, but permitted to sleep at times throughout that shift, they are likely to be entitled to be paid the NMW. It is also important to note that this decision concerned “time work” for the purposes of the NMW Regulations rather than “work” for the Working Time Regulations.
Today’s judgment will, of course, come as a sigh of relief to the care sector. If the claimants had been successful in their appeals, many employers could have faced significant claims for underpayment of wages worth millions of pounds at a time where the sector had already been severely impacted by the Covid-19 pandemic.
A copy of the Supreme Court’s judgment can be found here (Royal Mencap Society (Respondent) v Tomlinson-Blake (Appellant) and Shannon (Appellant) v Rampersad and another (Respondents) (supremecourt.uk))
For further advice on any of the changes outlined above please contact our Employment and HR Services team.
