Further to our previous article, the Supreme Court has now ruled in the case of Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8 on the issue of sleep in shifts, that care workers are not entitled to the national minimum wage for hours during which they are not engaged in work related activities, even where they are required to sleep on site.
Sleep In Shifts Case: Background
Back on the 13th July 2018, the Court of Appeal ruled in the case of Royal Mencap Society v Tomlinson-Blake [2018] EWCA Civ 129, CA that those required to undertake sleep in shifts were not entitled to national minimum wage payments for those shifts, during those hours when they were not engaged in work related activities in terms of carrying out their duties. Instead, there is only a requirement to pay them the national minimum wage when they are required to be awake for the purpose of working. The case was considered alongside the similar case of John Shannon v Jaikisham and Prithee Rampersad (trading as Clifton House Residential Home).
In reaching its decision, the Court of Appeal pointed out that under Regulation 32 of the National Minimum Wage Regulations 2015, it specifically states that a worker should only be paid the national minimum wage for hours “when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping.” The Court ruled that this stipulation applied to sleep in shifts in which workers were “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.”
The decision of the Court of Appeal overturned a ruling by the Employment Appeal Tribunal on the 21st April 2017 that had held that care workers were entitled to the national minimum wage for the entire sleep in shift, even for those hours where they were not engaged in work related activities in terms of carrying out their duties.
Appeal To The Supreme Court
The Supreme Court heard the appeal on the 12th-13th February 2020, after Unison (acting on behalf of Tomlinson-Blake) had been granted permission in February 2019 by the Supreme Court to appeal the Court of Appeal ruling. The Supreme Court finally handed down its Judgment on the 19th March 2021, and upheld the ruling of the Court of Appeal that care workers were not entitled to national minimum wage (NMW) payments for sleep in shifts, during those hours when they were not engaged in work related activities in terms of carrying out their duties.
In reaching its decision, the Supreme Court referred to a recommendation made by the Low Pay Commission in 1998, which was incorporated in to the National Minimum Wage Regulations 1999, and again into the National Minimum Wage Regulations 2015, that care workers should receive an allowance, instead of the national minimum wage, unless they are awake and engaged in work related activities for the purposes of carrying out their duties.
In her Judgment, Lady Arden stated: "The sleep-in worker who is merely present is treated as not working for the purpose of calculating the hours which are to be taken into account for NMW. The fact that he was required to be present during specified hours was insufficient to lead to the conclusion that he was working."
Sleep In Shifts Judgment: Reaction
The decision by the Supreme Court on the sleep in shifts issue has enormous implications for the care sector. Had the ruling by the Court of Appeal been overturned, then it would have likely bankrupted many care providers, given that the back pay that would have been owed collectively was estimated to amount to around £400 million. It may also have led many care providers to hand back their contracts, as it would have rendered them uneconomic. Furthermore, providers could also have faced fines from the HMRC in relation to breaches of the national minimum wage rules.
Commenting on the sleep in shifts case outcome, the chief executive of Mencap, Edel Harris, told the BBC that: "Support workers within Mencap and across the sector do an exceptional job. They are dedicated in their care for people with a learning disability and should be paid more. [But] it is no exaggeration to say that if the ruling had been different, it would have severely impacted on a sector which is already underfunded and stretched to breaking point. Some providers would have gone bust and, ultimately, the people who rely on care would have suffered."
Nevertheless, Liz Kendall, the Labour Party's shadow social care minister described the Supreme Court's decision on the sleep in shifts case as "extremely disappointing". She added: "Care workers do a highly skilled and difficult role and they should be paid fairly for every hour of the work they do. Crucially, no care workers should see their pay fall as a result of this ruling and it is imperative that the government works with care providers and trade unions to ensure this is the case. The long legal process that came before this judgment has shown the law around sleep in shifts is out of date, unfair and in urgent need of updating."
