This week employers in the care sector have been able to breathe a sigh of relief following a decision by the Court of Appeal that sleeping on-call workers are not entitled to National Minimum Wage.
Court Of Appeal Ruling On National Minimum Wage
Royal Mencap Society v Tomlinson-Blake [2018] EWCA Civ 1641
The case in question was a claim against Mencap, a charity which provides support for people with learning disabilities, by Mrs Tomlinson-Blake, a care worker who was required to “sleep-in” at her place of work and be available to work should the need arise. As is common practice in the care sector, she received a flat rate (below the National Minimum Wage rate) for each sleep-in shift completed and it was expected that she would be able to sleep when not required for work.
In April 2017, the Employment Appeal Tribunal (EAT) decided that Mrs Tomlinson-Blake should have been paid at least the National Minimum Wage for each hour she was required to be at work, whether awake or asleep. Mencap appealed the EAT’s decision but had to wait until this month for the outcome. In the meantime, care providers across the country feared they would be exposed to claims for significant amounts of back pay. Care workers, paid between £30 and £50 per sleep in shift, looked likely to have been underpaid by in excess of £40 each night. Had the decision stood, it would have been a significant financial burden for care providers, many of whom are dependent on funding from local authorities and already work to very tight margins.
The Court of Appeal were asked to interpret The National Minimum Wage Regulations 2015, in particular when a person can be treated as “working” and will be entitled to receive the National Minimum Wage. Previous cases have been inconsistent in this regard. In fact, the Court of Appeal considered another case at the same time which, despite similar facts, had been decided in favour of the Employer at the EAT stage. The Court of Appeal’s decision in both cases, that workers who are on-call but sleeping at work are not entitled to National Minimum Wage, will be welcomed by care sector employers many of whom will have been eagerly awaiting the outcome before deciding what action to take themselves.
A word of caution, however, is that this decision appears to be limited to arrangements in residential care homes and similar places of work. So, whilst it may provide guidance to other types of employer’s that engage workers on a sleep-in basis, it does leave some uncertainty as to whether it will be applied in the same way to other sectors.
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