In this article, we highlight two cases heard together, where the UK Supreme Court held that carers who may sleep for some or all of their shift are not entitled to national minimum wage pay during these hours. The case drew a distinction between hours in which a care worker was ‘working’ and those hours that they were ‘available for work.’
Details of the two cases
In the case of Royal Mencap Society v Tomlinson-Blake, Mrs Tomlinson-Blake worked as a salaried care support worker for the Royal Mencap Society, assisting with the provision of 24-hour care to two vulnerable adults at their private home. Mrs Tomlinson-Blake provided daycare which was considered salaried hours work for the purposes of the relevant regulations. She also provided care during night shifts, otherwise known as “sleep-in shifts,” which would cover specified hours from night until morning.
While she was required to remain at her workplace during these sleep-in shifts, Mrs Tomlinson-Blake had no specific duties to perform during the sleep-in shift. Mrs Tomlinson-Blake was therefore permitted to sleep during these hours but to, in her words, “keep a listening ear out” even while asleep. She was required to attend to any emergency that arose. During the hearing, it was established that in the 16 months before the employment tribunal, Mrs Tomlinson-Blake had been called upon approximately six times during the night while on sleep-in shifts.
For these sleep-in shifts, Mrs Tomlinson-Blake was paid an allowance of £22.35 plus one hour’s pay at the rate of £6.70 (the national minimum wage from 1 October 2015) in recognition of “the reasonable expectation” of the amount of work that would be required during her sleep-in shift. This provided Mrs Tomlinson-Blake with £29.05 pay for each sleep-in shift. Mrs Tomlinson-Blake claimed that each hour of her sleep-in shift should instead have been calculated through national minimum wage pay.
In the second case, Shannon v Rampersad and another (T/A Clifton House Residential Home), Mr Shannon was a night care assistant at a residential care home. He was provided with free on-site accommodation in a flat and was paid £90 per week. During the hours of 10 pm to 7 am, Mr Shannon was required to be in the accommodation “on-call.” Like Mrs Tomlinson-Blake, he was permitted to sleep during this period unless called upon. He was also very rarely called upon to assist the night care worker.
After being dismissed on 1 January 2014, Mr Shannon brought legal proceedings, among other reasons, to recover arrears of salary because of his alleged entitlement to national minimum wage during his sleep-in shifts.
At the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) for these cases, Mrs Tomlinson-Blake succeeded, where it was accepted that her sleep-in shift was ‘time work’ within the meaning of Regulation 30 of The National Minimum Wage Regulations 2015 (2015 Regulations). In the EAT, Mrs Justice Simler was satisfied that Mrs Tomlinson-Blake was working throughout her sleep-in shift due to the presence of a regulatory requirement and the fact that she was constantly on call.
Mr Shannon did not find the same success at the ET, where it was determined that he was not working throughout his shift. In applying Regulation 16 of The National Minimum Wage Regulations 1999 (as was the applicable law during the contention period), Mr Shannon’s on-site accommodation constituted his “home,” meaning that he could not claim his sleep-in shifts to be salaried hours work. The EAT upheld the ET decision in that case.
Both Royal Mencap Society and Mr Shannon appealed to the English Court of Appeal, where both cases were heard together. Allowing Royal Mencap’s appeal but dismissing Mr Shannon’s appeal, the Court held that care workers who are required to sleep at, or near, their workplace and be available to assist if needed are ‘available for work’ rather than actually working. Accordingly, both Mrs Tomlinson-Blake and Mr Shannon were not entitled to be paid the national minimum wage for the whole of their sleep-in shifts. In examining numerous decisions regarding sleep-in shift work, the justice concluded that sleep-in workers only qualified for the national minimum wage pay insofar as they were awake for the purposes of working in line with the relevant regulations. Both decisions were appealed to the UK Supreme Court but were dismissed. The Court concluded that for national minimum wage calculations for workers paid to sleep on the premises, they should only be entitled to the national minimum wage for “all times when they are awake and required to be available for work.”
Despite the decision, Royal Mencap Society chief executive Edel Harris emphasised the exceptional job of carers, particularly on the front line during the coronavirus pandemic, stating that they “should be paid more” and understanding that “many hard-working care workers will be disappointed by its ruling.”
While correct in law, the ruling will be seen by many as an opportunity to call for reform, firstly, to ensure that care workers are remunerated adequately for the vital role they perform in society and, secondly, to ensure that the care industry, largely comprising private sector organisations, is adequately funded by a government that is so dependent upon it to look after those in need of care.
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