Being Paid to Sleep? Royal Mencap Society v Tomlinson-Blake

In Royal Mencap Society v Tomlinson-Blake the Court of Appeal has determined that workers who “sleep in” at their workplace are not entitled to receive national minimum wage for periods when they are asleep. This is because time spent asleep in this way is properly characterised as time when an employee is ‘available for work’ rather than time when they are actually working.

Facts

Ms Tomlinson-Blake was employed by Mencap as a Care Support Worker from 2004. She worked as part of a team to provide 24 hour care and support to two vulnerable adults with substantial learning disabilities and autism, in their own home. Ms Tomlinson-Blake’s usual working patterns covered the hours from 7am to 10pm, in relation to which she was paid at least the National Minimum Wage (NMW). However, she was also required to carry out a sleep-in shift between 10pm and 7am, for which she received £29.05 (made up of a flat rate of £22.35 and one hour’s pay at £6.70), which was below the NMW.

During sleep-in shifts, Ms Tomlinson Blake had to remain at the house and deal with incidents or emergencies if they arose, but this was rare and she was generally expected and able to get a good night’s sleep in the bedroom provided to her.

If Ms Tomlinson-Blake was required to provide care during the night, the first hour of care was included within her shift rate but she received additional pay if more than an hour of care was needed.

Employment Tribunal & Employment Appeal Tribunal

Ms Tomlinson-Blake brought a claim in the Employment Tribunal on the basis that she was entitled to be paid NMW for the entirety of the sleep-in shift, including the hours she spent sleeping. She contended that she was working simply by being present in the house throughout her shift, whether or not she was awake, and therefore the whole sleep-in shift should be treated as “time work” for the purpose of the National Minimum Wage Regulations 2015 (the Regulations).

Mencap’s position was that Ms Tomlinson-Blake was only obliged to be available for work during her sleep-in shift and that as such, time spent asleep does not count as “time work” under the Regulations.

The ET found that Ms Tomlinson-Blake was actually working for the whole period of her shift. In reaching this decision it considered various different factors including Ms Tomlinson-Blake’s obligations to remain on the premises, keep a “listening ear” and use her professional judgment as to whether intervention was required, as well as Mencap’s regulatory obligation to have someone present during the night. The ET’s decision was that Ms Tomlinson-Blake was entitled to receive NMW for the entire sleep-in shift. The EAT agreed with the ET’s approach.

Court of Appeal

Mencap appealed to the Court of Appeal, which undertook a detailed analysis of the legislation and five previous decisions in this area. The Court of Appeal found that at least one case (Burrow Down Support Service Ltd v Rossiter) had been wrongly decided and that on a straightforward reading of the Regulations, workers sleeping-in under this type of arrangement are to be characterised as available for work, rather than actually working.

Having found that Ms Tomlinson-Blake was available for work and not actually working for the duration of sleep-in shifts, the Court of Appeal summarised the effect of the Regulations in these circumstances as follows:

“a worker who is, and is required to be, available for the purpose of working at or near his or her place of work is entitled to have the time in question counted as time work for NMW purposes unless

• he or she is at home; or
• the arrangement is that they will sleep (and be given facilities for doing so), in which case only those hours will count when they are, and are required to be, awake for the purpose of working”

As such, Ms Tomlinson-Blake, and workers in similar circumstances, will only be entitled to have their sleep-in hours counted for NMW purposes where they are, or are required to be, awake for the purpose of working.

The decisions of the ET and EAT were overturned and the Court of Appeal substituted a finding that Ms Tomlinson-Blake was not entitled to receive NMW for the duration of her sleep-in shifts.

Comment

This decision is of particular significance to the health and social care sector, where it is common for workers to undertake “sleep-in” shifts. It had been estimated that a requirement to pay NMW for these shifts could cost the industry approximately £400 million in back pay and be unaffordable and potentially unsustainable for many care providers going forward.

This decision is therefore likely to come as a welcome relief for many employers in similar circumstances to Mencap. However, Unison (who represented Ms Tomlinson-Blake) has indicated that it intends to appeal to the Supreme Court, so this may not be the last we hear of the matter.

Hempsons will keep a watching brief and report on any further updates as and when they happen. Should you have any questions in relation to this decision, our team is on hand to assist you.