The Supreme Court has handed down its judgment this morning in the high profile cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad, ruling that sleeping on-call care workers are not entitled to National Minimum Wage (NMW) for the hours they are not working.
The decision in both cases (which were considered side by side by the Supreme Court) could have implications for a high number of employees who are required to sleep at their place of work.
Royal Mencap Society v Tomlinson-Blake
Case background
The first case related to a claim by Mrs Tomlinson-Blake against Mencap, a charity which provides support for people with learning disabilities. Mrs Tomlinson-Blake was a care worker providing support to two men with autism and learning difficulties, 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, Mrs Tomlinson-Blake received a flat rate (below the NMW rate) for each sleep-in shift completed and she was able to sleep when not required for work during a night shift.
In April 2017, the Employment Appeal Tribunal (EAT) decided that Mrs Tomlinson-Blake should have been paid at least the NMW for each hour she was required to be ‘at work’, whether she was awake or asleep.
Mencap appealed the EAT’s decision but had to wait until July 2019 for the outcome.
In the subsequent Court of Appeal proceedings, the Court was asked to interpret The National Minimum Wage Regulations 2015 (NMW Regulations), in particular when a person can be treated as “working” and will be entitled to receive the NMW.
The Court of Appeal ruled in favour of Mencap, finding that workers who are on-call but sleeping at work were not entitled to the minimum wage. The Claimant then appealed this decision and the case went to the Supreme Court.
Shannon v Rampersad and another (T/A Clifton House Residential Home)
Case background
In this case, the Claimant (John Shannon) was an on-call night care assistant and was required to stay at the care home from 10pm to 7am. During this time he could sleep, but should any patients in the home require assistance then he would need to respond. In practice, he was rarely called upon during the night. Mr Shannon was paid a small salary and provided with free accommodation in the care home.
Again, the issue in question was whether the Claimant should be entitled to pay whilst he was asleep during the hours of 10pm and 7am when was on-call, or if he should only be paid for the time he was awake and assisting care home patients.
An Employment Tribunal (ET) ruled in favour of the employer. Mr Shannon’s claim failed as whilst he was available for work, he was not actually having to work as a matter of course because he was only required to do so on rare occasions. Mr Shannon appealed the ruling but the EAT also dismissed his claim. The case then proceeded to the Court of Appeal.
As with the case of Mrs Tomlinson-Blake, the Court of Appeal ruled that Mr Shannon was only available to work during his night shifts, but wasn’t actually working throughout the times of 10pm to 7am. Subsequently, the care home only had to pay the NMW when he was required to work.
Supreme Court ruling in both cases
In both cases, the Supreme Court has upheld the Court of Appeal’s judgments, finding that an on-call worker, required to sleep at (or near) their place of work, is only entitled to the NMW for the hours they are awake and working, not for the entirety of their sleep-in shifts.
This decision was based upon recommendations from the Low Pay Commission (LPC) to the Government when the NMW Regulations first came into existence. The LPC advised that sleep-in workers shouldn’t be paid for time spent sleeping. However, they should receive an allowance for a night shift where they are awake for the purposes of undertaking work duties.
Specifically in respect of Shannon v Rampersad, the Supreme Court stated there is a working from home exception in the NMW Regulations, which applied in the case.
This is the final ruling in the both cases and there is no further route of appeal for the Claimants.
Sleeping on-call workers and the minimum wage – comment
The Supreme Court ruling in both cases will come as a welcome relief to care sector employers, many of whom were awaiting the outcome of both cases before deciding what action they needed to take themselves on employee pay.
Had the Supreme Court ruled in favour of the Claimants then care providers across the country could have been exposed to claims for significant amounts of back pay.
Care workers, paid between £30 and £50 per sleep in shift could have been underpaid by in excess of £40 each night, which could have resulted in a significant financial burden for care providers, many of whom are dependent on funding from Local Authorities and already work to very tight margins.
How Nelsons can help
If you would like any advice in relation to the subjects discussed in this article, please contact a member of our Employment Team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
