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The Court of Appeal (CoA) last month handed down its much-anticipated judgment in the case of Royal Mencap Society v Tomlinson-Blake [2018] EWCA Civ 1641, addressing the issue of whether staff carrying out overnight ‘sleep-in’ shifts in the care sector were entitled to be paid the National Minimum Wage (NMW) for the entire duration of those shifts. The CoA also heard the case of  Shannon v Rampersad [2015] IRLR 982, which was an appeal (by the employee) in another sleep-in case.

The CoA allowed the appeal in Royal Mencap, holding that both in that case and in Shannon, sleepers-in were to be characterised for the purpose of the NMW Regulations (1999 and 2015) as available for work, within the meaning of the Regulations, rather than actually working, and so fell within the terms of the sleep-in exception. The result was that the only time that counted for NMW purposes was time when the worker was required to be awake for the purposes of working.

The factual background of Royal Mencap and Shannon

In Royal Mencap, the Claimant (Ms Tomlinson-Blake) had worked as an employee for Mencap since 2004, providing support and care to two vulnerable male adults on behalf of East Riding Yorkshire local council. The Claimant’s usual work pattern involved working a day shift at the men’s house either from 10 a.m. to 10 p.m. or 3 p.m. to 10 p.m. She would then work the following morning shift, either from 7 a.m. to 10 a.m. or from 7 a.m. to 4 p.m. Those hours were part of her salaried hours and she received appropriate remuneration in relation to 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. The Claimant argued that she was entitled to have the totality of her hours spent sleeping, counted as time work for NMW purposes.

In Shannon, the Claimant, Mr Shannon, was offered employment by Mr Sparshott in May 1993, as “on-call night care assistant” with accommodation. He was required to be in the studio accommodation from 10p.m. until 7 a.m. He was able to sleep during those hours but was required to respond to any request for assistance by the night care worker on duty at the home. In return he was provided with free accommodation with all utilities provided free of charge, together with a payment of £50 per week. In practice, he was very rarely asked to assist the night care worker. He had day jobs as a driver. The Claimant’s argument was also that he was entitled to have the entirety of the hours between 10 p.m. and 7 p.m. counted as salaried hours work for NMW purposes for 365 days a year. The arrears that he claimed on that basis were calculated to amount to almost £240,000.

The decisions of the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT)

In Royal Mencap, the ET found that while no specific tasks were allocated to the Claimant during ‘sleep-ins’, she was obliged to remain at the homes throughout the shift and to keep out a ‘listening ear’ in case her support was needed. She was expected to intervene where necessary to deal with incidents that might require her help (for example if one of the men was unwell or distressed). Even though the need to intervene was real but infrequent (the ET found that there were only six occasions over the preceding 16 months when the Claimant had had to get up to intervene during the sleep-in hours), the ET and the EAT, following the decision in Burrow Down Support Services Ltd v Rossiter [2008] UKEAT 592/07, upheld her claim, on the basis that she was actually working for the whole period so that the sleep-in exception did not apply.

In Shannon, the case was argued in the ET and the EAT on the basis that the crucial question was whether during the periods in question the Claimant was actually working, or available for work, and the case-law on that question was expressly considered. The ET and EAT found that he was only available for work, so that regulation 16 (1) and (1A) applied and he was not entitled to the NMW for the entirety of the night shift.

The decision of the CoA

The CoA in Royal Mencap held that on a straightforward reading of the NMW Regulations, workers on sleep-in shifts were only entitled to have their hours counted for NMW purposes when they were (and were required to be) awake for the purpose of performing some specific activity. The CoA held that the Report of the Low Pay Commission which had led to the enactment of the National Minimum Wage Act 1998 was significant. The Report had recommended that the only time that should count for NMW purposes were periods when workers on a sleep-in shift were “awake and required to be available for work”.

The CoA held that it did not follow from its earlier judgment in British Nursing Association v Inland Revenue [2003] ICR 19 – in which bank nurse booking staff were found to be carrying out work throughout their night shifts – that workers who were expected to sleep on their night shifts were also carrying out work throughout these shifts. It also held that the judgment of the Inner House of the Court of Session in Scottbridge Construction Ltd v Wright[2003] IRLR 21 in which a night watchman was held (following British Nursing) to have being working throughout his night shift was confined to its facts.

The CoA stated that the EAT’s conclusion in Burrow Down that workers were actually working throughout their sleep-in shift even if they were sleeping was based on a mistaken understanding of the effect of British Nursing and Scottbridge, was contrary to the clear meaning of the NMW Regulations, and was wrong. Regulation 32 of the 2015 NMW Regulations made it clear, the CoA concluded, that the only hours that count for NMW purposes are those where the worker is required to be awake in order to perform a specific activity.

The CoA also found for the employer in Shannon based on the same reasoning as in Royal Mencap.

In the sole judgment, Lord Justice Underhill therefore overturned a significant body of case-law and held that “sleep-in” residential care workers are only entitled to the NMW when they are awake and “actually working”, not when they are asleep and therefore, he held, simply “available for work”.

Our solicitors’ comments on Royal Mencap Society v Tomlinson-Blake

Caroline Lewis, specialist employment solicitor at Redmans, commented on the case: “This judgment will have an enormous impact on the care sector. Care providers concerned about their back pay liabilities will welcome the judgement; the hundreds of thousands of low paid sleep-in workers who might see pay cuts as a result of the decision will be duly concerned at this latest decision and exploitation of such workers may become increasingly rife”.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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