Care Workers Not Entitled to Be Paid Whilst Sleeping
05/18/2021
Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8
The Supreme Court recently handed down its decision in Royal Mencap Society v Tomlinson-Blake dismissing an employee’s claim that she was entitled to payment of the National Minimum Wage for time not spent performing some specific work-related activity while undertaking night shifts. The judgment will come as a relief to care home and community operators, who had the appeal been successful, could have owed millions in unpaid wages and fines.
The background to the decision
The Defendant supplied care and support to vulnerable adults under a contract with a local authority. The Claimant, Mrs Tomlinson-Blake, had been employed by Royal Mencap since 2004. She provided care and support for two men in their homes. Both men had severe autism and learning difficulties.
Mrs Tomlinson-Blake’s usual work pattern involved a day shift and a morning shift, for which she received appropriate salaried remuneration. She was also required to carry out a sleepover shift from 10pm to 7am at a flat rate of £22.35, plus one hour’s pay of £6.70 (£29.05 in total). Although no actual tasks were expected to be completed during the sleepover shift, Mrs Tomlinson-Blake needed to keep a ‘listening ear’ out during the night in case her support was needed. She was also expected to intervene where required or respond to requests for help. In 16 months, her support at night was required only half a dozen times. If the men did not need her, she was able to sleep through the night. Where her sleep was disturbed and she needed to provide night-time support, the first hour was not additionally remunerated, while any further hours were paid for in full.
Mrs Tomlinson-Blake claimed in the Employment Tribunal (ET) that she was entitled to have all the hours spent sleeping counted as working time for minimum wage purposes. The ET and (on appeal by Mencap) the Employment Appeal Tribunal ("EAT") upheld her claim. The ET reasoned that during the night shift Mrs Tomlinson-Blake was not free to come and go as she pleased and would have been disciplined had she left the premise.
Judge Burton concluded that
“…it was the fact that while performing the sleep in shift, the onus was constantly on her to use her professional judgement and to use her detailed knowledge that she had of the residents to decide when she should intervene in order to meet their needs and when she should not in order to respect their right to privacy and autonomy.”
The Court of Appeal ruled that the Claimant was not entitled to national minimum wage payments for sleepover shifts and gave permission to the Claimant to appeal.
The Supreme Court’s decision
The issue came down to statutory interpretation, specifically on the meaning of regulation 32 of the National Minimum Wage Regulations 2015 (NMW).
Regulation 32 provides:
“(1) Time work includes hours when a worker is available, and required to be available, at or near a place of work for the purposes of working unless the worker is at home.
(2) In paragraph (1), hours when a worker is 'available' only includes hours when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping.”
After reviewing the section and the background to the making of the legislation, the Supreme Court held:
“Regulation 32(2) provides in relation to time work that only hours spent awake for the purposes of working are hours when the worker is 'available', and this is so even if the employer has arranged for him to sleep. […]
The Court went on to conclude:
“Having regard to the purpose of regulation 32(2), which […] implement the LPC recommendation about sleep-in shifts, the contemplation of the regulations in relation to time work is that a sleep-in worker cannot actually be working for NMW purposes if the arrangement is that he is to be present and sleep on the premises during his hours of work subject only to emergency calls. Accordingly, regulation 32(2) should be treated as applying to all such workers doing time work.”
Therefore, if an employee is undertaking a sleepover shift, the time spent sleeping should not be included in the NMW calculation for work time purposes. The only time that needs to be included in the NMW calculation is that in which the worker is responding to an emergency call.
Comment
The Court’s role is to interpret legislation not to question its morality or fairness. If Parliament believes that the current situation regarding care workers’ pay during sleepovers is unfair, it is for Parliament to change the law via amending the legislation.
In delivering her judgment, Lady Arden underlined the “importance in society today of carers and wardens who help to look after those who through age or infirmity cannot look after themselves”. Given the realisation, following the Coronavirus pandemic, of the commitment and tireless service care workers provide, it would not be out of the realms of possibility to predict that there will be future changes to the legislation allowing for payment during sleepover shifts. However, a balance needs to be struck between ensuring care providers are not hit with unreasonable costs and workers being fairly remunerated for their time.
