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We are all aware of the fundamental importance of sleep, and it is on sleep that the Supreme Court was focussed in its recent judgment in the case of Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8. More specifically, whether a worker who is expected to sleep during their working hours is categorised as “working”, or merely being available in case of work needing to be carried out, and as such, how their pay should be determined.

The background to the appeals

Most people will be familiar with the National Minimum Wage (NMW), which is an hourly rate fixed by the government following a report from the Low Pay Commission (LPC). The question in these two cases (as they were two appeals, taken together) was whether carers who were required to sleep at their workplaces, but not actually work other than in case of emergency, should be paid the NMW for their hours.

The appeals were dismissed, with the Supreme Court deciding unanimously that the respective claimants should not be required to be paid the NMW for the whole of their shifts while they slept.

The LPC First Report

Crucial to the reasoning of the Supreme Court was the First Report of the LPC, which included guidance on sleep-in workers. As there was no objection raised by the Secretary of State, the National Minimum Wage Act 1998 should be approached, according to the court, as implementing the LPC’s recommendations.

Those recommendations included that workers who sleep in at their premises should be entitled to the NMW for any hours they are awake and required to be available for work, but not if they are asleep.

‘Awake and required to be available for work’

The court ruled that, plainly, a worker who is asleep cannot be judged to be working, even if they needed to keep a ‘listening ear’ out for those in their care. That means that the hours that they are permitted to sleep do not form part of the calculation of their hours for NMW purposes.

As for being ‘awake and required to be available for work’, this had to be read as a whole, without the word “awake” being taken out of context, according to Lady Arden. This meant that only if the worker was both awake and required to be available for work would their hours be considered to fall under NMW provisions. Being awake for their own purposes would not suffice.

Overturning previous caselaw

One of the most dramatic areas of this appeal was the way in which it handled previous analogous cases. The court overturned the Court of Appeal decision in British Nursing Association v Inland Revenue [2002] EWCA Civ 494, as the tribunal had determined in that case that the workers were working during their night shift, and not merely available for work. The Supreme Court did not consider that that was a finding which it was open to the tribunal to make. They overturned Burrow Down Support Services Ltd v Rossiter [2008] ICR 1172 for similar reasons.

Conclusions

It is clear from this judgment, and that of the recent Shamima Begum case, that we are firmly in a post-Lady Hale Supreme Court. Those who work sleep-in shifts will continue to be bound by a fixed rate fee, and, without further intervention from the LPC, will not be entitled to the NMW for those hours.

Chris Hadrill, the partner in the employment team at Redmans, commented on the case: “This case shows, as per our team’s comments, that there may be a shift in the Supreme Court over the coming years in terms of the enforcement of workers’ rights. This, combined with the free hand provided to the Government over legislation now that the United Kingdom has left the European Union, could mean an eroding of workers’ rights in general.”

Link to judgment: https://www.bailii.org/uk/cases/UKSC/2021/8.html

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