Written by Brabners LLP
The Court of Appeal has held, in the recent case of MenCap v Tomlinson-Blake [2018], that care workers who are doing a ‘sleep-in’ are not entitled to the National Minimum Wage for the time that they are asleep.
Workers that ‘sleep in’ were defined by Lord Justice Underhill as those workers that “are contractually obliged to spend the night at or near their workplace on the basis that they are expected to sleep for all or most of the period but may be woken if required to undertake some specific activity”.
This finding reverses the judgment of an Employment Tribunal, which found that charities and care homes should pay the national minimum wage to workers for ‘sleeping in’ during their shift. This is good news for the care sector – concerns had previously been raised as to whether an alternative decision would cause many care providers to become insolvent.
Before the tribunal ruling in Mencap, workers were paid a flat-rate fee for doing a sleep-in. The Claimant, Ms Tomlinson-Blake was employed by Mencap, a charity that works with people with a learning disability. She was paid, in line with the trend, a flat rate of £29.05 plus an hour’s pay of £6.70 for her overnight shift which was below the National Minimum Wage. If she needed to be awake for more than an hour to fulfill her job role she would have received extra pay. The Tribunal held that workers should be paid the national minimum wage throughout their shifts including the time spent sleeping.
At first instance, the Tribunal found that Ms Tomlinson-Blake was ‘at work’ even when she was asleep. The Tribunal noted that this was supported by Mencap’s obligation that someone must be on the premises of the person being cared for because of regulations requiring this and also a similar obligation that Mencap owed to the Council. Although, that outcome essentially meant that her mere presence at the property in her capacity as a care worker would suffice in showing that she was working, even whilst she was asleep!
Following this, the Department for Business, Energy and Industrial Strategy (BEIS) modified their guidance to state that organisations should pay the national minimum wage to staff working on these types of shifts in line with the Tribunal’s ruling. HMRC also began enforcing this and demanded that six years’ worth of missing payments were owed to these workers.
It is understood that, on appeal, Underhill LJ held that the Tribunal’s judgment that the Claimant was actually working for the whole period of the shift, was wrong. This is based on the reasoning that the Claimant slept by arrangement at her workplace and suitable facilities were provided for her. As such, she was to be deemed as being ‘available for work’ and not actually working. The judge found that the hours that the worker spent ‘sleeping in’ do not count towards the national minimum wage entitlement as a result.
This is a particularly significant ruling by the Court of Appeal. It removes the uncertainty surrounding the application of the National Minimum Wage to ‘sleep in’ arrangements. Is that the end of the matter then?
Well, probably not! The union, Unison, is considering progressing a further appeal to the Supreme Court. They argue that the consequence of this ruling is that carers would continue to be “paid a pittance” for such an important job role. However, conversely, a number of social care groups welcomed this appeal ruling – in particular, because of concerns that up to two-thirds of employers were facing insolvency in the sector if they had to finance back-dated pay.
There is a clear tension in the sector between the rate of pay provided for the important work done and the pressures and insufficient funding for care providers generally. We’ll now have to wait and see if the case will be appealed again or if some certainty has at last been provided for those involved with the sector.
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