The pandemic has undoubtedly presented great challenges for care providers. The last year or so has meant that the sector has had to adapt quickly to pressures from within and externally and find innovative ways to operate. A headline issue which predates the pandemic concerns the issue of whether 'sleep in' workers are entitled to the National Minimum Wage for the time that they are attending work but are asleep. See our previous briefing for background.
The question of whether time spent during sleep-in shifts in the social care sector counts towards working time has significant financial implications for operators, particularly at a time when many operators have suffered financially as a result of the pandemic. The prospect of a 'back–pay' liability following the much-anticipated decision of the Supreme Court is eye watering for many providers. There is also the risk of fines from HMRC. Care charities have warned of ensuing insolvency across the sector if the appeal to the Supreme Court is successful.
Background
Three Employment Tribunal (ET) decisions in 2015 and 2016 were brought to the Employment Appeal Tribunal (EAT) in 2016/2017. The EAT considered the proper approach to the question of whether employees who sleep-in to carry out duties if required engage in "time work" for the full duration of the night shift or whether they are only entitled to the national minimum wage when they are awake and carrying out relevant duties.
Mrs Tomlinson-Blake's claim was that as a care worker for the learning disability charity Mencap, she was entitled to be paid for the hours spent sleeping as they should be counted as working for the purposes of the National Minimum Wage Act 1998 and the National Minimum Wage Regulations 1999 and 2015 ('NMW'). The ET and on appeal by Mencap, the EAT, upheld her claim.
The Court of Appeal allowed Mencap's further appeal on 13 July 2018 ruling that she was not entitled to NMW payments for hours spent sleeping on a sleep-in shift. This reflects that such care workers are contractually obliged to sleep at or near their workplace, to be available for work, rather than working and are expected to sleep for all or most of the night. The Court of Appeal confirmed that the only time that counts for NMW purposes is time when the worker is required to be awake for the purposes of working.
A second appeal in the case of Shannon v Rampersad also found for the employer. Care England, the largest representative body for independent providers of adult social care, was granted the right to intervene in the proceedings in recognition of the importance of the case to employers in the care sector.
Mrs Tomlinson-Blake (backed by UNISON) lodged an application to appeal to the Supreme Court. In February 2020 the Supreme Court was asked to consider whether 'sleep-in time' is working time and therefore subject to the NMW provisions in its consideration of the two cases concerning Mrs Tomlinson-Blake and Mr Shannon.
The Supreme Court decision
The Supreme Court judgement was handed down today, Friday 19 March 2021, and dismissed the appeals of Mrs Tomlinson-Blake and Mr Shannon. It has confirmed that Mrs Tomlinson-Blake cannot bring an action against Mencap for arrears of pay and Mr Shannon cannot pursue a claim for damages. The judgement will come as a huge relief to care providers.
It remains to be seen whether we now see a move toward minimum payments for sleep–ins. The decision has at least resolved the uncertain position created by several cases over the past few years and will be a welcome decision for employers in the care sector.
Disclaimer
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.
Originally published 19 March 2021.
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