‘Sleep-in’ workers not entitled to minimum wage, Supreme Court rules

19 Mar 2021 By Francis Churchill

Judges uphold guidance that care workers should be given an allowance during sleep-in shifts, ending a long-running dispute against charity Mencap

Care workers are not entitled to the national minimum wage (NMW) while they are on sleep-in shifts, the Supreme Court has ruled, in a decision that has come as a relief to employers in the sector.

The court found that provisions in existing national minimum wage legislation meant two care workers, one who had brought a claim against charity Mencap and the other against Surrey care home Cliffton House, were not allowed to count their sleep-in shifts as ‘time work’ or as part of their salaried hours unless they were awake for the purpose of working.

In particular, the court cited 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, that sleep-in workers should receive an allowance and not the NMW unless they are awake for the purposes of working.

This recommendation was also included in the National Minimum Wage Regulations 2015.

“The sleep-in worker who is merely present is treated as not working for the purpose of calculating the hours which are to be taken into account for NMW,” said Lady Arden in her judgement. “The fact that he was required to be present during specified hours was insufficient to lead to the conclusion that he was working.”

Experts have said employers in the care sector would be relieved with the decision which, if it had fallen in favour of the claimants, could have added millions to staffing costs. “If this judgment had gone the other way it could have bankrupted many in the care industry,” said Sarah Ozanne, an employment lawyer at CMS.

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Siobhan Mulrey, employment law specialist at Irwin Mitchell, said the care sector would “breathe a huge sigh of relief” at the decision, which could have knock-on effects for other care workers.

“Although this decision only directly applies to workers whose main purpose is to sleep at or near their place of work… it’s possible that home workers will find it more difficult to argue they are working throughout their shifts, rather than simply being ‘available for work’,” Mulrey said.

She added: “Care workers will be very disappointed, particularly as they perform a vital service yet are some of the poorest paid workers in our society.”

Amelia Goodwin, associate at Charles Russell Speechlys, added that case law on the issue had previously been inconsistent, so today’s ruling would be helpful for employers in the care sector as well as others, including those providing security staff or emergency IT cover, who engage sleep-in workers.

“This decision means the ongoing support for vulnerable people will be safeguarded and will also contribute to strengthening the sustainability of the sector,” Goodwin said, although noted the judgment appeared to be “at odds” with last month’s ruling in favour of Uber drivers.

The ruling brings to an end three years of legal battles between the claimants and the charity.

Claire Tomlinson-Blake, a ‘time work’ employee – meaning she was paid for the hours she worked, and John Shannon, a salaried worker, had both launched separate tribunal claims against Mencap, arguing that they were entitled to the minimum wage for the entirety of their sleep-in shifts.

Tomlinson-Blake, whom the court described as a “highly qualified care support worker”, provided support for two vulnerable adults in their home. When she worked nights she was allowed to sleep, but was not allowed to leave her place of work and was required to “keep a listening ear out” while she slept and attend to emergencies. The court heard she was disturbed around six times over a 16-month period.

She was paid an allowance of £22.35 plus one hour at the minimum wage – £6.70 at the time – for each night shift. But Tomlinson-Blake argued she was entitled to the minimum wage for the duration of her shift and claimed wages in arrears.

Both the initial employment tribunal and the Employment Appeal Tribunal found that Tomlinson-Blake was not merely available for work but actually working during her night shift – even when asleep – meaning she was entitled to NMW for the entirety of her shift. However, the Court of Appeal overturned this decision, and the Supreme Court upheld the decision by the Court of Appeal.

Shannon was an on-call night care assistant at the residential care home Cliffton House, where he was provided with free accommodation and paid a fixed amount of £50 per week, which later rose to £90 a week. Shannon was required to be on site between 10pm and 7am and while he was allowed to sleep, he had to assist the night care worker on duty if needed. The court heard that in practice he was rarely called upon.

Shannon was dismissed in 2014 and, as part of the resultant tribunal claim, he argued he was entitled to the NMW and claimed payment in arrears of £240,000.

The initial employment tribunal, the Employment Appeal Tribunal, the Court of Appeal and the Supreme Court all dismissed Shannon’s claim.

Edel Harris, chief executive of Mencap, told the BBC that support workers did “an exceptional job” and “should be paid more”. But, she said: “It is no exaggeration to say that if the ruling had been different, it would have severely impacted on a sector which is already underfunded and stretched to breaking point.”

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