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Supreme Court rules employers do not have to pay care workers national minimum wage for sleep-in shifts

The Supreme Court has dismissed appeals to pay two care workers the National Minimum Wage (NMW) for hours in which they are required to sleep on-site during overnight shifts.

Ruling on the appeals of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad, the judges determined that care workers with ‘sleep in’ caring roles have no entitlement to be paid the NMW for each hour that they are required to sleep on the employer’s premises.

The first appellant, Mrs Tomlinson-Blake, was a care support worker who provided care to two vulnerable adults at their own home. When she worked at night, she was permitted to sleep but had to remain at the home and “keep a listening ear out” in case of an emergency. She was paid an allowance plus one hour’s pay at the NMW rate. She brought proceedings on the basis that she was entitled to be paid the NMW for each hour of her sleep-in shift.

The employment tribunal and ensuing employment appeal tribunal found that Mrs Tomlinson-Blake was entitled to the NMW for each hour on the shift, including while she was asleep.

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The care worker involved in the second case, Mr Shannon, was an on-call night care assistant at a care home. He was provided with free accommodation at the home and paid a fixed amount per week.

During his shift (10 pm to 7 am), he was permitted to sleep but required to help if his colleagues required assistance. According to court documents, he was rarely called upon.

Mr Shannon brought proceedings to recover arrears of salary on the basis he was entitled to be paid the NMW for each hour he was on call. Both the employment tribunal and employment appeals tribunal dismissed his claim.

When the two care workers brought further appeals, they were heard together by the Court of Appeal, which found that neither worker was entitled to be paid the national minimum wage for the hours of their sleep-in shifts.

Following this, the care workers appealed to the Supreme Court. Lady Arden gave the first judgment, dismissing the appeal. Lord Carnwath, Lord Wilson and Lord Kitchin gave concurring judgments.

Lady Arden gave weight to the recommendations of the Low Pay Commission (LPC) report. The LPC play a large role in determining the NMW by providing a report to the government on appropriate pay.

The report suggested that sleep-in workers should receive an allowance and not the NMW unless they are awake for the purposes of working, and that recommendation was repeated in later reports of the LPC.

Lady Arden then turned to the National Minimum Wage Regulations 1999 and National Minimum Wage Regulations 2015, which govern the calculation of the NMW rate.

She concluded that the meaning of the sleep-in provisions in the 1999 regulations and the 2015 regulations is that, if the worker is permitted to sleep during the shift and is only required to respond to emergencies, the hours in question are not included in the NMW calculation for time work or salaried hours work unless the worker is awake for the purpose of working.

As such, Lady Arden argued that in the case of each appeal, the time when by arrangement Mrs Tomlinson-Blake and Mr Shannon were permitted to sleep should only be taken into account for the purpose of calculating whether they were paid the NMW to the extent that they were awake for the purposes of working and the entire shift did not fall to be taken into account for this purpose.

In making her decision, Lady Arden also decided that the previous cases, Burrow Down Support Services Ltd v Rossiter, British Nursing Association v Inland Revenue and Scottbridge Construction Ltd v Wright were wrongly decided and should be overruled. Lord Carnwath, Lord Wilson and Lord Kitchin agreed that the appeals should be dismissed for the reasons provided by Lady Arden.

Cllr Ian Hudspeth, Chairman of the Local Government Association’s Community Wellbeing Board said the “significant ruling is in line with councils’ and social care providers’ understanding of the law.”

Cllr Hudspeth added: “Had the appeal been upheld, care providers and councils providing social care would have faced massive bills, which would have increased the huge financial pressures they are already facing.

“As we said in our submission to the Court, the LGA strongly supports care workers being paid a fair wage for their valued work.

“Of course, today’s decision does not remove the need for a sustainable funding settlement for adult and children’s social care, which includes important decisions on the workforce such as pay, recruitment and career development.

“The Government should bring forward its proposals on adult social care funding as soon as possible.”

Sue Harris, Legal Director for GMB, the union for care workers, said that many people would be surprised by the Supreme Court’s decision. She said: “It essentially means if you are at your employers’ premises - not at your home - able to sleep, but know you may be disturbed at any time during that sleep, then those hours don’t count for the purposes of working time.

“Not many people would be able to sleep knowing they could be called to action at any moment."

She added: “We have seen throughout the pandemic the wonderful work that carers do, they are the group in our society most likely to be on the minimum wage and that they are predominantly women and predominantly Black, Asian, Minority Ethnic employees.

“This was a chance to address one of the reasons for the low pay of carers, it’s a shame it wasn’t seized upon.”

A copy of the judgment can be found here: https://www.supremecourt.uk/cases/docs/uksc-2018-0160-judgment.pdf

Adam Carey

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