18th July 2018
The Court of Appeal has issued its decision in Royal Mencap Society and Tomlinson-Blake ruling that carers who work sleep-in shifts at a client’s residence and who are ‘on call’ are not entitled to the National Minimum Wage for periods whilst they are asleep.
Ms Tomlinson-Blake was employed by Mencap as a carer for autistic adults. Her usual work pattern involved working a day shift at the men’s house until 10 p.m. and then working the following morning shift from 7 a.m. Those hours were part of her salaried hours and she received adequate pay for them. In addition, the claimant was required to carry out a sleep-in shift between 10 p.m. and 7 a.m. for which she received a flat rate of £22.35 together with one hour’s pay of £6.70, making a total payment for that nine-hour sleep-in of £29.05.
The precise scope of the claimant’s duties during a sleep-in shift were considered in detail by the original Employment Tribunal. No specific tasks were allocated to the claimant to perform during that shift, but she was obliged to remain at the men’s house throughout this shift and to keep a ‘listening ear’ out during the night in case her support was needed. She was expected to intervene where necessary to deal with incidents that might require her intervention (if one of the men became unwell or distressed) or to respond to requests for help. The Tribunal had emphasised that deciding whether to intervene required an exercise of her professional judgment, based on her knowledge of the residents.
In practice, the need for Ms Tomlinson-Blake to intervene was real but infrequent. The Tribunal found that there were only six occasions over the preceding 16 months when the claimant had to get up to intervene during the sleep-in hours. If nothing needed to be done during her sleep-in shift, the claimant was entitled to sleep throughout. She was provided with her own bedroom in the house, together with shared bathing and washing facilities. The evidence was that it was positively expected that she should get a good night’s sleep, since, depending on the shift pattern, she might have to work the following day.
Ms Tomlinson-Blake’s claim, supported by the union Unison, was that she was entitled to have all hours of her sleep-in shift hours (including those when she was asleep) paid at the National Minimum Wage (NMW).
Her case was upheld by the Employment Tribunal and Mencap appealed to the Employment Appeal Tribunal, unsuccessfully. On the back of this decision, in April 2017, Mencap began paying the NMW for every hour of a sleep-in shift. It also appealed to the Court of Appeal arguing that the decision was wrong and, apart from anything else, it could simply not afford to meet the potential financial exposure to back-payment claims from sleep-in carers.
The social care sector has awaited the Court of Appeal’s decision with bated breath given the enormous potential liability for the sector (estimated to be £400m). The wait was over on 13 July 2018 when it issued its decision upholding Mencap’s appeal and roundly rejecting the EAT’s previous reasoning.
It held that care workers doing sleep-in shifts are only entitled to the NMW when they are required, because they need to undertake a specific activity, to actually be awake.
The assertions that Ms Tomlinson-Blake was expected to keep a ‘listening ear’ open during her sleep time and use professional judgment as to whether she was needed to intervene in any disturbances did not persuade the Court. The Court ruled that every sleep-in worker must keep a listening ear open but that it does not, by itself, constitute performing a specific activity. It noted that in Ms Tomlinson-Blake’s case, she had only been required to wake up and intervene on six occasions over the preceding 16 months.
The Court of Appeal’s view is that sleep-in workers (whilst they are sleeping) are ‘available for work’ rather than actually ‘working’. It held that the correct interpretation of the NMW Regulations is that the only time that counts for NMW purposes is the time when the worker is required to be awake for the purposes of working.
The Court of Appeal adopted what it referred to as a “bright line” approach that it found to be missing from previous case law authorities on the issue. Basically, this involved focusing above all else on what Parliament’s original intention was when drafting the NMW Regulations and sleep-in exception. It said, “It would not be a natural use of language, in a context which distinguishes between (actually) working and being available for work, to describe someone as “working” when they are positively expected to be asleep throughout all or most of the relevant period.”
It is very important to note that this decision does not go so far as to give employers complete carte blanche to say that NMW is not payable for a sleep-in shift because each case will still need to be decided on its facts.
The Court of Appeal said, “I quite accept that the distinctions [between the previous authorities and this case] are subtle, but they are in my view sufficient to justify a difference in outcome: it must be borne in mind that the decision which side of the line dividing “actual work” from “availability for work” a given case falls is factual in character, and in marginal cases different tribunals might well assess very similar facts differently.”
The Court said that its judgment is limited to the facts of sleep-in workers who are “contractually obliged to spend the night at or near their workplace on the basis that they are expected to sleep for all or most of the period but may be woken if required to undertake some specific activity”.
As the facts of not all sleep-in cases are the same, there will always need to be an assessment in each case.
Unison, who represented Ms Tomlinson-Blake, has issued a press release stating that it is considering an appeal to the Supreme Court. If this happens, we may not have a definitive answer for some time.
This decision is good news for the social care sector who will be hoping that Unison do not appeal and that the Court of Appeal’s decision will be the final word. An appeal would need to be lodged within 28 days, so we should have an answer to that point fairly soon.
Many employers signed up to the Government’s Social Care Compliance Scheme (SCCS) which enables employers to repay money owed to workers by March 2019 without any HMRC penalty. It now remains to be seen whether the Government dissolves the scheme. Mencap have commented on their website that there now seems little point in the SCCS continuing.
Many care employers (including Mencap) had already begun paying NMW for the full duration of sleep-in shifts after the EAT issued its decision in 2017. Mencap has stated that it does not intend to reverse this practice and it is hard to see how they would be able to do so lawfully.
This is a highly charged political issue and Mencap is calling for the Government to legislate for better pay for care workers and to ensure that sleep-ins are paid at a ‘higher rate’.
There are a number of questions yet to be answered that we hope to have some clarity on over the next few months, including:
We will issue further updates as the position becomes clearer.
If you have any queries please contact David Smedley or Andrew Rayment.