‘Sleep-in’ care workers’ national minimum wage claim rejected by the Supreme Court

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In certain jobs, employers require their employees to sleep at the workplace in question, or nearby in readiness to complete shifts or be on call when needed. This often applies in the health and social care sector and is known as ‘sleep-in’ time.

In Royal Mencap Society v Tomlinson-Blake and another case, the Supreme Court considered whether care workers in this situation were entitled to the national minimum wage (NMW) for the full duration of their sleep-in shifts. The Court ruled that, during these periods, the workers were ‘available for work’ and therefore only entitled to the NMW for the hours when they were awake for the purpose of working but not for the hours they spent sleeping.

The claim was brought by a care support worker employed by the Royal Mencap Society who was part of a care team assisting two autistic men with substantial learning disabilities, both of whom needed 24-hour support. Shifts were arranged to provide this care, including overnight sleep-in shifts.

As part of their role, the claimant was required to stay at the private dwelling of the men overnight to provide support as necessary although, in reality, occasions when they needed assistance during these shifts were few – there were only six occasions over 16 months when intervention occurred during the sleep-in shifts.

The claimant was paid £29.05 for a nine-hour sleep-in shift between an evening and morning shift, and brought employment tribunal proceedings claiming entitlement to the NMW covering the full duration of the sleep-in shifts.

The Employment Tribunal initially found in favour of the claimant, whilst rejecting the Royal Mencap Society’s argument that the circumstances were covered by the sleep-in exception in Reg 32 of the 2015 NMW Regulations, which provides that where a worker sleeps at or near the workplace and is ‘available for work’, they are only entitled to the NMW for hours when they are awake for the purpose of working.

The Royal Mencap Society appealed unsuccessfully to the Employment Appeals Tribunal and then made a further appeal to the Court of Appeal, which made the distinction that care workers on sleep-in shifts are ‘available for work’ rather than actually working for their entire duration. In this instance, the claimant was ‘available for work’ throughout her sleep-in shifts but not actually working for the entirety of each one. Therefore, she was only entitled to NMW for the periods of the sleep-in shifts when she was actually working.

The Supreme Court dismissed the claimant’s subsequent appeal, having taking into account the National Minimum Wage Act 1998, the 2015 NMW Regulations, and a Low Pay Commission (LPC) report which recommended that sleep-in workers should receive an allowance from their employer, and only receive the NMW for the time when they were awake for the purposes of working.

The Supreme Court’s ruling reiterated that the worker must be awake ‘for the purposes of working’ in order to be entitled to the NMW. It concluded that as the sole requirement of the worker during sleep-in shifts was to respond to emergency calls, the NMW entitlement should only apply to the time when the worker was engaged in that action at any point during the sleep-in shift.

In arriving at its judgment, the Supreme Court also reflected on relevant case law and, in doing so, held that the decisions in British Nursing Association v Inland Revenue and Burrow Down v Rossiter should both be overturned. In both cases, NMW had been awarded to claimants for whole shifts where they were ‘available for work’ but not actually working for their entire duration.

This case has significant implications for the care sector. Whilst it may be good news for care providers who could have been exposed to a large volume of claims, it is a tough decision for the already low-paid workers in the care sector.