Employment Law Cases
When does sleep count as 'work' for NMW purposes?
Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad (t/a Clifton House Residential Home)
‘Sleep-in’ residential care workers are only entitled to the National Minimum Wage (NMW) when they are awake and ‘actually working’, not when they are asleep and therefore simply ‘available for work’.
Essentially at issue in this case was whether a worker is entitled to the minimum wage where they are contractually obliged to spend the night at or near their workplace but they are expected to sleep for all or most of the period but may be woken if required to undertake some specific activity. Does the entirety of the period spent on the premises under such arrangements have to be taken into account in calculating an employer’s obligations under the NMW regulations or only such time as is spent actually performing some specific activity?
These joined cases involved a Mr Shannon and a Ms Tomlinson-Blake. Mr Shannon, an ‘on call night care assistant’, was provided with a flat at the care home where he worked and was required to be in the flat from 10pm to 7am to meet a regulatory requirement. He was allowed to sleep during these hours. He was there to support a night-care worker who was on duty and awake during this period. Mr Shannon had to respond to any calls for assistance from the night-care worker on duty at the time but was very rarely called upon.
Ms Tomlinson-Blake was a domiciliary care support worker who worked at the private homes of two vulnerable adults, where she had her own bedroom and access to a shared bathroom. Her shift rota included both day shifts and sleep-in night shifts. During the night shift, no specific tasks were allocated to her, but she had to remain at the house and intervene where necessary and respond to requests for help and emergencies. The need to intervene was real but infrequent (six occasions over the 16 months before the tribunal hearing).
Both Mr Shannon and Ms Tomlinson-Blake brought tribunal claims on the basis that they should be paid the hourly NMW rate for the duration of their sleep-in shifts. The tribunals upheld Ms Tomlinson-Blake’s case but dismissed Mr Shannon’s. The employers appealed to the EAT. Mr Shannon lost his appeal but Ms Tomlinson-Blake won. The EAT said that a ‘multifactorial’ test must be applied in these circumstances, which depended on factors such as the contractual position between the parties, the nature of the tasks required, and the degree of responsibility. Mr Shannon and Ms Tomlinson-Blake’s employer, Mencap, appealed.
Court of Appeal decision
The Court of Appeal allowed Mencap’s appeal but dismissed the appeal of Mr Shannon. On a straightforward reading of the NMW regulations, workers on sleep-in shifts at or near their home (but not actually at home) are only entitled to have their hours counted for NMW purposes when they are (and are required to be) awake for the purpose of performing some specific activity. This is irrespective of if they are there to meet regulatory requirements. The court also relied on the Report of the Low Pay Commission (LPC) which led to the enactment of the NMW. The report recommended that the only time that should count for NMW purposes were periods when workers on a sleep-in shift were ‘awake and required to be available for work’.
Supreme Court decision
The Supreme Court also gave weight to the recommendations of the LPC. The government accepted the LPC’s recommendation on sleep-in shifts in its first report. That recommendation was that sleep-in workers should receive an allowance and not the NMW unless they are awake for the purposes of working, and that recommendation was repeated in later reports of the LPC.
The court concluded that the meaning of the sleep-in provisions in the 1999 and 2015 regulations is that if the worker is permitted to sleep during the shift and is only required to respond to emergencies, the hours in question are not included in the NMW calculation for time work or salaried hours work unless the worker is awake for the purpose of working.
Accordingly, in the case of each appeal, the time when by arrangement Mrs Tomlinson-Blake and Mr Shannon were permitted to sleep should only be taken into account for the purpose of calculating whether they were paid the NMW to the extent that they were awake for the purposes of working and the entire shift did not fall to be taken into account for this purpose.
Link to judgment: https://www.bailii.org/uk/cases/UKSC/2021/8.html
It is important to remember that this is a ‘sleep-in’ decision – so this is not about workers who are either working at home or working away from home but expected to carry out specific tasks during their ‘shift’. They are workers working away from home and the expectation is that they will be sleeping. This is an important case for the care industry as if it had gone against them there would have been a lot of back pay claims and an increased cost of care.