UK: Hours Spent Sleeping By Sleep-In Care Workers Should Not Be Taken Into Account When Calculating NMW

Last Updated: 10 October 2018
Article by Wrigleys Solicitors

In Royal Mencap Society v Tomlinson-Blake, the Court of Appeal overturned an EAT decision that care workers were actually working throughout a sleep-in shift.

According to the National Minimum Wage (NMW) Regulations, a worker is entitled to the NMW for time when they are actually working or for time when they are available and required to be available at or near a place of work for the purposes of working. But a worker who is "available" for work rather than working will not be entitled to the NMW for time when they are at home or when the worker is provided with facilities to sleep during a shift – in this case, only time spent actually responding to calls will be counted.

Mrs Tomlinson-Blake was employed by Mencap as a care worker supporting two people with learning disabilities living in the community. As well as her day shifts, she undertook sleep-in shifts for which she was paid a fixed amount. She had her own bedroom in the house and was expected to sleep for most of the night. Her contract required her to remain in the house and she was expected to intervene to support her clients when necessary during the night. This happened only rarely (six times in 16 months). She received additional pay for time spent assisting her clients during these shifts.

Mrs Tomlinson-Blake brought a claim that she had not been paid the NMW when taking into account time spent on sleep-in shifts. An employment tribunal upheld her claim, finding that she was actually working throughout each sleep-in shift. This was on the basis that Mencap had regulatory and contractual obligations for a care worker to be in the house at all times and that Mrs Tomlinson-Blake was obliged to remain in the house and to listen out in case she was required to intervene. In other words, it was part of her work simply to be there. The EAT agreed.

The Court of Appeal did not agree. Lord Justice Underhill held that Mrs Tomlinson-Blake and another care worker in a similar case were rightly classified as "available for work" during their sleep-in shift, rather than actually working. Therefore only the time when they were required to be awake for the purpose of working counted for NMW purposes. Lord Justice Underhill stated that an arrangement where "the essence of the arrangement is that the worker is expected to sleep" falls squarely under the exception set out in the NMW Regulations, that is when a worker is available to work but provided with facilities to sleep. He did not agree with the EAT that Mrs Tomlinson-Blake was actually working simply by being present on the premises.

Lord Justice Underhill took into account the Low Pay Commission report which influenced the drafting of the NMW Regulations 1999. This report recommended that workers who were "required to be on-call and sleep on their employer's premises (e.g. in residential homes ...)" should not have the sleep-in hours counted for NMW purposes.

This decision goes against a recent line of cases where workers have been found to be actually working when contractually or statutorily obliged to be present throughout the night. It suggests that care workers who are usually expected to get a good night's sleep during the sleep-in shift should not have hours spent sleeping taken into account when carrying out the NMW calculation. However, tribunals will still determine each case on its facts. It is also questionable whether this decision will apply to cases which do not involve care worker sleep- in arrangements.

Employers should note that Unison has sought permission to appeal this decision to the Supreme Court and it is therefore possible that the interpretation of the NMW Regulations will change once again.

In many cases, following the Tribunal and EAT rulings, employers in the care sector have already taken action to ensure that carers are paid the NMW overall, taking into account sleep- in hours in their entirety. The issue for those employers has been the question of liability for back pay (for service pre-dating the Tribunal decision) which it was estimated could cost the care sector £400m. With the Court of Appeal decision such claims also now fail. However, employers should also take into account that any reduction in pay for existing workers on the basis of the Court of Appeal decision would be a fundamental change of contract and require the workers' agreement to the change.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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