This week employers in the care sector will be taking a particular interest in the Supreme Court, who are hearing appeals in two cases which relate to sleeping on-call workers and their entitlement to the National Minimum Wage.
Royal Mencap Society v Tomlinson-Blake
The first case relates to 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.
Employment Appeal Tribunal (EAT) proceedings
In April 2017, the 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 July last year for the outcome.
Court of Appeal proceedings
In the Court of Appeal proceedings, the Court 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.
The Court of Appeal ruled in favour of Mencap that workers who are on-call but sleeping at work are not entitled to National Minimum Wage.
The claimant appealed this decision.
John Shannon v Jaikisham and Prithee Rampersad (trading as Clifton House Residential Home)
In this case, the claimant (John Shannon) was an on-call night care assistant and had to stay at the care home from 10pm to 7am, during which time he could sleep but should any patients in the home require assistance then he would need to respond (however, he was rarely called upon during the night). The claimant was paid a small salary and provided with free accommodation in the care home.
Again, the point of issue 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, assisting care home patients.
Employment Tribunal (ET) and EAT proceedings
The ET ruled in favour of the employer. John Shannon’s claim failed as he whilst he was available for work, he was not actually having to work, as he was only required to do so on rare occasions.
John Shannon appealed the ruling but the EAT also dismissed his claim.
Court of Appeal proceedings
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 minimum wage when the employee was required to work.
Sleeping on-call workers and the minimum wage – comment
The Court of Appeal rulings in both cases were welcomed by care sector employers, many of whom were awaiting the outcomes before deciding what action they needed to take themselves on employee pay.
However, with the Supreme Court rulings now imminent, things could change. Should the Supreme Court rule in favour of the claimants then care providers across the country could be 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. If the Supreme Court goes in the employees’ favour then it could result 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.