Over the past few years there has been debate about reconciling time on call with the circumstances in which workers are entitled to the National Minimum Wage (NMW). This issue is particularly acute in the care sector, where workers are often required to spend nights at or near their workplace, being permitted to sleep but liable to be disturbed. Whether they are entitled to NMW for all or part of this time depends on whether they are actually working or merely ‘available for work’.
In Royal Mencap Society v Tomlinson-Blake, the Court of Appeal has recently ruled that workers are only entitled to the NMW when they are actually working after having been woken, not when they are asleep but liable to be disturbed. The judgment overturns the previous ruling of the Employment Appeal Tribunal (EAT) and reverses the trend of other recent decisions.
The National Minimum Wage Regulations 2015 (NMWR)
‘Time work’ under the NMWR includes hours when a worker is available, and required to be available, at or near a place of work for the purposes of working. However, the caveat is that this ‘only includes hours when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping’. The appeal court considered that recommendations in the June 1998 report of the Low Pay Commission heavily influenced the drafting of the first National Minimum Wage Regulations in 1999, which stated that workers should be entitled to the NMW ‘for all times when they are awake and required to be available for work’.
Ms Tomlinson-Blake, a care worker employed by Mencap, worked ‘sleep-in’ shifts at residential premises for adults with learning difficulties. She had her own bedroom and was expected to sleep, but was required to listen out during the night for any calls for help and to exercise her professional judgement to provide support as necessary. She was paid a flat sum each night, but would receive additional sums if called upon during the night. She argued that the total duration of the shift amounted to time work for the purposes of the NMWR and accordingly that she had been paid less than NMW. The EAT found in Ms Tomlinson-Blake's favour, holding that Mencap's legal obligation to have a carer present, combined with her responsibility to use her professional judgment throughout the night, meant that she was entitled to NMW for the whole shift.
The Court of Appeal judgment
Addressing the dividing line between actual work and availability for work, the court considered the caveat in the NMWR above and concluded that only the time Ms Tomlinson-Blake was awake for the purposes of working was relevant to any calculation of NMW. Underhill LJ distinguished the case from the previous leading authority of British Nursing Association v Inland Revenue (in which it was held that nurses who were permitted to sleep between calls were working for the total duration of shifts), on the basis of the expectation of sleep: when expected to sleep, workers are merely ‘available for work’. However, when they are permitted to sleep during a lull, the time asleep is within the remit of time work.
What does this mean for employers?
This will be welcome news for care providers, bringing clarity on the application of the NMWR to on-call night workers. If they are expected to sleep, rather than simply permitted to sleep, then time asleep will not count in any NMW calculation.
Roger Tynan is a partner and Niall Rice a trainee at Dentons