The Court of Appeal has held that a “sleep-in” care worker in residential accommodation was not entitled to be paid the national minimum wage while sleeping. In Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad and another t/a Clifton House Residential Home, the Court of Appeal held that a “sleep-in” care worker in residential accommodation was not entitled to be paid the national minimum wage while asleep.
These are important rulings for the care-sector in determining whether the whole of sleep-in shifts count as work under national minimum wage legislation.
The National Minimum Wage Regulations 2015 provides that work that is paid according to any specific period of time and during which minimum wage is payable (“time work”) includes hours when the worker is to be “available” at the place of work for the purpose of working.
However, the regulations also state that a worker is “available” only when the worker is awake, even if they sleep at or near the place of work.
Looking at the Tomlinson-Blake case findings
In the case of Tomlinson-Blake, the employee was paid at the national minimum wage for day shifts. She also worked sleep-in shifts from 10pm to 7am, during which she received a flat rate of £22.35, plus one hour’s pay at the rate of national minimum wage.
The one hour’s pay reflected the possibility that she might have to wake up to carry out work but in practice it was rare that she was woken up during the night. She was therefore entitled to additional payments if she worked for more than one hour at night.
Tomlinson-Blake won her claim at the tribunal and at the Employment Appeal Tribunal. The EAT adopted a test to use when considering whether a sleep-in worker is available for work and entitled to be paid the minimum wage. The EAT used the following four stages:
- the reason for engaging the worker;
- the extent to which the worker’s activities are restricted by the requirement to be on the premises;
- the level of responsibility on the worker; and
- the speed with which the worker has to take action if needed.
However, the Court of Appeal disagreed with the EAT and overturned the decision. The ruling dictated that it would not make sense for a worker who is expected to be asleep throughout all (or most) of the shift to be described as “working”. Therefore, it was concluded that sleep-in workers should be described as “available for work” rather than actually working, and so fall within the exception under the National Minimum Wage Regulations 2015 of sleeping in.
So what does this mean for the Care Sector?
This ruling is important for the Care Sector. Previous rulings suggest that sleep in workers do not have to be awake to be entitled to the national minimum wage, however the decision in this case provides clarity for employers. The only time to include for national minimum wage purposes is time during which the sleep-in worker is required to be awake.
If you have any questions regarding national minimum wage and sleep-in workers, our HR Consultants are able to advise.
To speak to our team, contact us today, and we’d be happy to help.