This followed appeals brought by two care workers who were “sleep-in” workers, that is, by arrangement they were permitted to sleep at or near their place of work, with the appeals focusing on the calculation of the time spent by them for which they should be paid the National Minimum Wage (NMW).
Work includes 'salaried hours work', 'time work', 'output work' and 'unmeasured work' as defined by the National Minimum Wage Regulations 2015.
They provide that, in general, time when workers are required to be available at or near their employer’s place of business for the purposes of doing time work is included in calculating time work and salaried hours work but there are exceptions:
- where the worker is permitted to sleep during the shift; and
- where the worker is at home.
The appeals to the Supreme Court were concerned with the former exception.
Background to the cases
Mrs Tomlinson-Blake was a highly qualified care support worker who provided care to two vulnerable adults at their own home.
When she worked at night, she was permitted to sleep but had to remain at her place of work. She had no duties to perform except to “keep a listening ear out” while asleep and to attend to emergencies, which were infrequent.
Mr Shannon was an on-call night care assistant at a residential care home. He was provided with free accommodation at the care home and paid a fixed amount per week.
He was required to be present in the accommodation from 10 pm to 7 am and was permitted to sleep during that period, but had to assist if the night care worker on duty required his assistance during those hours. In practice he was rarely called upon.
The Employment Tribunal and, on appeal, the Employment Appeal Tribunal (EAT) found that Mrs Tomlinson-Blake was not merely available for work but actually working throughout her shift, even when asleep.
Each hour of her sleep-in shift had therefore to be included in the NMW calculation.
However, the Tribunal and the EAT both dismissed Mr Shannon’s claim.
Further appeals in both proceedings were heard together by the Court of Appeal, which held that neither was entitled to be paid the NMW for all the hours of their respective sleep-in shifts.
Supreme Court ruling
The Supreme Court has unanimously dismissed the resultant appeals in respect of both cases.
It paid particular attention to a recommendation made by the Low Pay Commission (LPC) that sleep-in workers should receive an allowance - and not the NMW - unless they are awake for the purposes 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,' Lady Arden said in the judgment.
Edel Harris, Chief Executive of the Royal Mencap Society, explained that Mencap contested this case because of the 'devastating unfunded back pay liabilities' facing providers across the sector - estimated at £400 million.
However, she went on, Mencap understood that many hard-working care workers will be disappointed by the ruling.
'We believe that the legislation covering sleep-in payments is out of date and unfair and we call on Government to reform it,' Ms Harris said. 'More widely, they should do a thorough and meaningful review of the social care workforce and put more money into the system so that we can pay our hardworking colleagues better.'
Note for employers
Care operators across the country will no doubt breathe a sigh of relief at the Supreme Court’s ruling, especially as the implications for the Court going the other way looked set to be substantial.
For care companies, this certainly seems like the end of the story. Not only can they continue to operate as they have been doing and won’t need to make changes to how staff are paid, they now do not face potential claims for failure to provide the NMW and, perhaps most significantly, this particular case cannot again be appealed.
In reaching its decision, the Supreme Court seems to have adopted the same approach as the Court of Appeal, whose decision back in the summer of 2018 actually went against previous lower courts' findings.
Fundamentally, the law surrounding the payment of the NMW includes specific provisions for those on sleep-in shifts, and that correct application of the law ultimately meant this claim had to fail.
The Court was clear, however, that this ruling only applies to shifts where an employee is expected to sleep during their shift, which the claimants in this case were.
It remains to be seen what the ongoing implications of this ruling will be, with many operators in the care sector calling on the Government to take another look at the law surrounding sleep-in shifts and payment of the NMW.
However, until we see a response from the Government, employers should take this ruling as definitive. Workers on sleep-in shifts are only entitled to the National Minimum Wage for the time in which they are required to work.