Sleep-in Shifts and the National Minimum Wage
Thursday 16th August 2018
The recent Court of Appeal decision in the case of Royal Mencap Society v Tomlinson-Blake, considered if carers who sleep at a client’s home are entitled to the National Minimum Wage while they are asleep.
The Claimant, Ms Tomlinson-Blake, was a care support worker. Her duties involved a sleep-in shift from 10pm to 7am for which she was paid £22.35 plus one hours pay £6.70. At the first instance hearing the Employment Tribunal held that the whole of the sleep-in shift was in fact time working and therefore Ms Tomlinson-Blake was entitled to minimum wage for that whole period.
The decision was appealed to the EAT. The EAT dismissed the appeal and held that the ET had been correct in taking a multifactorial evaluation to decide if the Claimant was doing work during the whole of her sleep-in shift.
On a further appeal to the Court of Appeal, the CA has now established that care workers who sleep at a client’s home are only entitled to the National Minimum Wage for the time they are required to be awake for the purpose of working and not for the whole of their sleep-in shift.
The key factors underpinning this decision were that as the Claimant slept at her place of work, was provided with suitable facilities for doing so and that she was to be treated as being available for work during those hours and not actually working. The fact that she was required to have a ‘listening ear’ and be ready to intervene or assist was irrelevant, as this was the purpose of her sleeping in.
This case confirms that the ‘sleep-in exceptions’ only apply to those cases where the individual for work rather than performing actual work. Seeking to clarify this point the Court considered the example of a night-watchman who had significant duties at either end of a shift which allowed for a short period of sleep utilising limited facilities would likely be deemed to be performing actual work for the entire shift.
This judgement is of particular importance to employers in the care sector. Had the EAT found for Ms Tomlinson-Blake it is likely that multi-million pound back pay liabilities would have arisen across the sector.
Employers who have contractual undertakings to pay the full National Minimum Wage for sleep in shifts will not be able to move to a flat rate for sleep-ins without amending the contract of employment first.
It does seem that an appeal to the Supreme Court on this matter will follow.
If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team.