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19th March, 2021 by Sobia Ahmad
The Supreme Court has delivered its judgment in Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home). The case considered whether two “sleep-in” care workers were entitled to National Minimum Wage (“NMW”) during all shift hours including those spent sleeping at or near their place of work.
Mrs Tomlinson-Blake was permitted to sleep during night shifts but kept a “listening ear out” to attend emergencies. She was paid an allowance and one hours pay for her sleep-in shift. Any time worked when she was awake during her sleep-in shift Mrs Tomlinson-Blake received the NMW. Mrs Tomlinson-Blake argued, however, that all of her sleep-in hours should be included for her NMW entitlement.
Mr Shannon was paid a fixed amount per week and was provided with free accommodation at a care home. He was permitted to sleep (and provide assistance if necessary) and was required to be present at the accommodation from 10pm to 7am. Mr Shannon argued he was “on call” and should have been paid NMW for all night-time hours.
As part of its decision, the Supreme Court considered whether the established authority of British Nursing Association v Inland Revenue remained good law. This earlier decision held that a worker operating a night-time telephone service from home was working when waiting to answer the phone, even though the work was intermittent and they were permitted to sleep.
The Supreme Court ruled that Mrs Tomlinson-Blake and Mr Shannon were not entitled to be paid NMW during periods when they were asleep, only when they were awake for the purpose of working. Lady Arden in her judgement stated:
“the basic proposition is that they are not doing time work for the purposes of the NMW if they are not awake”
“If the employer has given the worker the hours in question as time to sleep and the only requirement on the worker is to respond to emergency calls, the worker’s time in those hours is not included in the NMW calculation for time work unless the worker actually answers an emergency call.”
“that means that the hours that he is permitted to sleep do not form part of the calculation of his hours for NMW purposes (unless he is woken for work reasons)."
In reaching its decision, the Supreme Court considered the meaning of regulation 32 of the National Minimum Wage Regulations 2015 and similar provisions of the preceding National Minimum Wage Regulations 1999. It rejected the established line of thinking that regulation 32 entitled those on standby to work to receive NMW regardless of whether they were awake (an idea arising from the British Nursing Association case). The Supreme Court instead gave greater weight to the first report of the Low Pay Commission (1998), which stated: “workers should be entitled to the National Minimum Wage for all times when they are awake and required to be available for work”. In light of that it was clear that those who were asleep should not be entitled to NMW.
The Supreme Court held that British Nursing Association can no longer be considered good law, as it did not draw a distinction between working and being available for work. Merely being available for work was insufficient.
Sobia Ahmad comments:
“The Supreme Court’s decision makes clear that a sleep-in worker is only entitled to NMW when they are awake for the purposes of work. That decision will come as a sigh of relief for employers who have sleep-in workers and not just those in the care sector. The potential costs of National Minimum Wage back pay could have run into the millions for some employers."
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