Some jobs such as care workers, security guards and nightwatchmen require the individual to work night shifts where they may, with the approval of their employer, sleep during some or all of the shift, but nevertheless remain on standby during that time. The Supreme Court was asked to decide how many hours such a worker should be paid for the purpose of the National Minimum Wage (NMW) which will be raised to £8.91 from April 2021 for over 23s.
Facts of the case
The case involves two Claimants. The first, Mrs Tomlinson-Blake was a care worker, employed by Mencap, a mental health charity that provides, amongst other services, ‘sleep-in’ care for vulnerable people on behalf of local authorities. Their work involved being part of a team that covered day and night shifts in order to provide full-time care to the individuals with mental health difficulties.
The Claimant was able to sleep during the night shifts but she was required to have a ‘listening ear’ in the event that she was required to support the service users. The Tribunal heard that being required for support during the night was rare, only occurring 6 times in the last 16 months, but that the Claimant needed to be on standby nonetheless.
The second Claimant was Mr Shannon who, since 1993, was an on-call night care assistant at a residential care home. In exchange for having to be in his accommodation from 10pm to 7am every night and respond to the duty night care worker’s requests for assistance, Mr Shannon was provided with free accommodation and utilities along with £90 per week. Mr Shannon was rarely required during the night and with effect from 1 January 2014, he was dismissed. The Claimant sought to recover arrears of salary amounting to almost £240,000 which he contended he was due under the 1999 NMW Regulations which were in force at the time of his dismissal.
The NMW Regulations were introduced in 1998 to ensure that for any given working period, a worker would be paid a minimum amount (Section 1). The Regulations were updated in 2015 to specify when a worker is to be considered as working and therefore entitled to receive the NMW.
The issue in this case concerned regulation 32 of the 2015 Regulations which state:
Time work includes hours when a worker is available, and required to be available, at or near a place of work for the purposes of working unless the worker is at home.
In paragraph (1), hours when a worker is ‘available’ 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.
These provisions confirm that where a worker is provided with a place to sleep and does sleep whilst in their place of work, they are only entitled to receive NMW for hours when they are awake for the “purpose of working”. This stood in contrast with the judgment in Burrow Down v Rossiter which concluded that care workers who were permitted to sleep whilst on shift were to be classed as actually working. This is because they were not permitted to leave their place of work due to a statutory obligation on the employer (to provide care for certain individuals).
Court of Appeal’s reasoning
Underhill LJ overruled Burrow Down Support Services Ltd v Rossiter, which held that a ‘night sleeper’ who slept undisturbed at a care home was in fact working for the entire shift.
The Court of Appeal decided that sleep-in workers who needed to be available for work were included within what is now Regulation 32(1) of the NMW Regulations 2015, and so should only be entitled to pay for the hours they are actually awake and working.
Supreme Court’s decision
The Supreme Court agreed with the Court of Appeal and held that sleep-in workers are entitled to be paid at least NMW for the hours they are “awake for the purposes of working”.
The Court made a clear distinction between being available for work and actually working. The former means that Regulation 32 applies and therefore the worker cannot be seen to be actually working for the purposes of Regulation 3.
Looking at the legislation, the Court stated that:
“The basic proposition is that they are not doing time work for the purposes of the NMW if they are not awake. However, the regulations go further than that and state that not only are they not doing time work if they are asleep: they are also not doing time work unless they are awake for the purposes of working. So, it is necessary to look at the arrangements between the employer and the worker to see what the worker is required to do when not asleep but within the hours of the sleep-in shift.
This issue has plagued care providers for many years and as Mencap commented after the Judgement, if the ruling had favoured the Claimants, this would have had a severe impact on an already underfunded sector.
While we accept that this type of role entails taking on significant responsibilities, even when sleeping, with small financial reward, we believe this is a sensible outcome, which will provide clear direction to care providers.
We recommend that care providers review their time recording system to ensure that any time spent working during sleep-in shifts is accurately recorded, to avoid breaching NMW responsibilities which could attract liability for fines up to £20,000 per worker.
Julie Bann is a partner, Aleksandra Wolek a solicitor and Victoria Smith a trainee at Sharpe Pritchard LLP
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