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Supreme Court rules on minimum wage entitlement for sleep-in care workers


The Supreme Court has delivered its final verdict on what has been called a landmark case for the UK care sector, regarding the question of whether time spent asleep during a “sleep-in” shift should amount to working time under the National Minimum Wage Regulations 2015.


The Supreme Court has dismissed the worker’s appeal, ruling that time spent asleep during a sleep-in shift is not working time, and as a result, care workers who perform sleep-in shifts are not entitled to be paid at least the national minimum wage for that time.


Case history


Ms Tomlinson-Blake had been employed by the Royal Mencap Society (Mencap) since 2004 as a care support worker, providing support to two male patients of the service who had Autism and substantial learning difficulties, and lived in their own private properties.


In her role as a care support worker, Ms Tomlinson-Blake’s usual work pattern consisted of a day shift and a morning shift, for which she received at least the national minimum wage for all hours worked. She was also required to carry out a sleep-in shift from 10pm to 7am. This sleep-in shift was renumerated at a flat rate of £22.35, plus an additional hour’s pay at the rate of £6.70 equating to a total of £29.05, per sleep-in shift.


During each sleep-in shift, Ms Tomlinson-Blake had no specific tasks other than to keep what was referred to as a ‘listening ear’ during the night in case she was needed to intervene or respond to requests for help. This need to intervene was an infrequent one, with around six occasions being recorded over the preceding 16-month period. Where interventions or a need for support did not occur, Ms Tomlinson-Blake was entitled to sleep undisturbed, in her own room, throughout the shift.


Where she was required to provide night-time support or intervene, the first hour was not remunerated as this had been accounted for in the additional payment of £6.70. Any further hours beyond that first hour were paid to her in full, on top of her flat sleep-in shift rate of £29.05.


In 2016, Ms Tomlinson-Blake brought a claim to the Employment Tribunal (ET) that she believed she should have been entitled under the National Minimum Wage Regulations 2015 to receive full payment for the duration of each sleep-in shift, even where she was asleep, as she believed that these hours were all deemed to be working time.


The ET upheld Ms Tomlinson-Blake’s claim, agreeing that sleeping time did qualify as working time under the NMW Regulations 2015, and she should have received at least the national minimum wage for each hour of her sleep-in shift. The ET also stated that this claim should be backdated by 6 years. The ET based this decision on the fact that a care worker was required to be present in the home of the patient and to remain there to keep a “listening ear” out for any support or intervention needed during the shift.


Mencap subsequently appealed against the ET decision in 2017. The matter went to the Employment Appeal Tribunal (EAT), who also upheld the ET decision.


In 2018 Mencap appealed against the ET & EAT decisions to the Court of Appeal, whose verdict was that Ms Tomlinson-Blake was not entitled to NMW payments for the full duration of her sleep-in shift and as such was not entitled to back payment. The Court of Appeal stated their rationale for this decision was that care workers who are required to sleep at (or near) their workplace and be available to provide assistance were deemed to be “available for work” instead of actually performing work. The key point relied upon by the Court of Appeal was the distinction made in the National Minimum Wage Regulations 2015 that the worker must be awake for the purpose of working in order for time spent at work to be considered working time.


Upon receiving the Court of Appeal’s decision, Ms Tomlinson-Blake was awarded permission to appeal this decision to the Supreme Court.


The Supreme Court decision


In February 2020, the Supreme Court sat for 2 days to hear Ms Tomlinson-Blake’s appeal against the Court of Appeal outcome. Whilst the Supreme Court gave no indication of their decision at the time, Lord Kerr - who oversaw the hearing - did comment that the case would be “a difficult one for the Court to decide”.


Today, the Supreme Court has dismissed the appeal, and delivered its final verdict which upholds the decision of the Court of Appeal in the favour of Mencap.


The Supreme Court decision is that time spent asleep during a sleep-in shift is not classified as being working time, and as a result, care workers who perform sleep-in shifts are not entitled to be paid at least the national minimum wage for that time in accordance with the Working Time Regulations 2015.


This outcome is likely to be welcome news to many employers within the care sector, who were understandably very concerned about the potential for this outcome to result in millions of pounds worth of backdated claims for underpayments for NMW, at a time when the care sector is already facing extreme difficulties as a result of the pandemic.