In a landmark ruling, the Supreme Court has held that “sleep-in” workers, i.e. workers who are required to sleep at, or near, their workplace and be available to work throughout the night, are not entitled to the National Minimum Wage (“NMW”) throughout the whole of their shift.
Royal Mencap Society v Tomlinson-Blake
Mrs Tomlinson-Blake was employed as a care worker and as part of her duties, was required to provide night-time care to two men with autism and learning difficulties. Throughout the night, she was expected to provide care should it be needed and was paid a flat rate of £22.35 plus one hour’s pay of £6.70 for a “sleep-in” shift from 10pm-7am.
Whilst Mrs Tomlinson-Blake was rarely required to provide care during those times, she argued that she should in fact be paid the NMW for her whole shift. She believed that although she was allowed to sleep and had no specific tasks to carry out, she was technically still working as she was unable to leave the service users’ house and had to intervene if necessary.
The Tribunal initially agreed with Mrs Tomlinson-Blake and held that she should be entitled to NMW for each hour of the “sleep-in” shift that she completed as she was “available for work”. The Tribunal decision sent shockwaves throughout the care sector when it also held that she could claim for six years of back payments.
The case was taken to the Employment Appeal Tribunal by the employer, where the appeal was dismissed.
That decision was then appealed again by the employer in the Court of Appeal. This time the appeal was allowed, and it was held that “sleep-in” workers are only “available for work” rather than actually working. This meant that Mrs Tomlinson-Blake was not entitled to the NMW throughout the whole of her night shift, but rather only to the periods when she was actually deemed to be working.
Of course, Mrs Tomlinson-Blake was unhappy with this decision and took her appeal to the Supreme Court. In a decision that the care sector will greatly welcome, Mrs Tomlinson-Blake’s appeal was dismissed for several reasons, with one of the main reasons being that a worker must be awake “for the purposes of working” in order to receive the NMW.
Take away points
Whilst this case will provide some comfort to employers in the care sector, in the future we could see similar arguments with different facts which revert to the previous thoughts that “sleep-in” workers are in fact entitled to NMW for the duration of their shift.
As the Supreme Court decided, it will be necessary to look at the individual agreements and arrangements between the employer and the worker when establishing whether NWM will apply. If the worker is only required to work during emergency calls, as in the case here, then the NMW will only apply during those emergency responses. It would not matter whether the worker is called up 10 times or only once during their shift – the NMW entitlement will only apply to the times when they are deemed to be “working”.
If you would like any further guidance as to when workers are entitled to the National Minimum Wage then please get in touch with the team on 01752 663295.