Years of litigation ends as Supreme Court rules about “sleep-in” shifts


26th March 2021

In a recent landmark ruling in Royal Mencap Society v Tomlinson-Blake, the Supreme Court has put to bed the possibility that workers are entitled to receive the national minimum wage for sleep-in shifts even if they are not actually awake and working.

Background

Mencap is a charity that, among other services, provides 24 hour care to vulnerable adults on behalf of local authorities. They have residential properties where staff sleep at the property in case the residents need assistance during the night. Mencap paid staff a flat rate for those so-called ‘sleep-shifts’.

This practice was challenged by one such worker, Ms Claire Tomlinson-Blake, who argued at an Employment Tribunal that the fact that she was required to be present at her workplace and to ‘keep an ear out’ while asleep meant she was actively working the whole time and was therefore entitled to receive the national minimum wage (NMW) for every hour of the shift, not just for any portion of it for which she was actively providing care services. Mencap disagreed.

The Employment Tribunal agreed with her and so did the Employment Appeal Tribunal when Mencap appealed the first decision. However, the Court of Appeal allowed Mencap’s appeal and held that for NMW entitlement, staff had to be awake for the purpose of working. Ms Tomlinson-Blake was then given permission to appeal this ruling at the Supreme Court which finally ruled in Mencap’s favour.

The decision on sleep-in shifts

The Supreme Court focused on considering the definition of ‘time work’ in the National Minimum Wage Regulations 2015. It noted the distinction in the Regulations between being merely available for work and actually carrying out work and concluded that the fact that someone is present for work does not mean that they are actually working. It also relied heavily on a recommendation first made in 1998 by the Low Pay Commission, and accepted by the Government as part of the National Minimum Wage Regulations 1999 and subsequently in the 2015 Regulations, that sleep-in workers should receive an allowance and not the NMW, unless they are specifically awake for the purposes of working.

Disappointing as this will be to thousands of vital but low-paid workers, given the estimated £400 million in back pay that would have been owed across the sector and the potential to add millions to staffing costs going forward if Mencap lost, the ruling will come as a relief to employers in the care sector but also to other employers whose staff are required to sleep near their work or onsite but who only actively work if needed.

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