In July 2018, we reported on the Court of Appeal’s decision in the conjoined cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersand. In a judgment that was highly significant for the care sector, the Court of Appeal found that workers who were required to undertake sleep-in shifts were only “working” for the purposes of the national minimum wage (NMW) legislation when they were awake for the purposes of working, and were not therefore entitled to be paid the NMW for the duration of their shift.

The care workers appealed to the Supreme Court which has now handed down its judgment, some twelve months after hearing the case. In a decision that will be welcomed by employers across the health and social care sector, the Supreme Court has upheld the Court of Appeal’s decision, finding that the workers were only entitled to the NMW when they were awake for the purposes of working, which in this case meant responding to an emergency call.

Background

Ms Tomlinson-Blake was a care support worker who provided care to two vulnerable adults in their homes, via day shifts and sleep-in shifts. When on a sleep-in, she was not allocated any specific tasks but was required to remain on the premises and intervene if necessary. The need to intervene was “real but infrequent” and in fact she had only been required to intervene on six occasions over a 16-month period.

Mr Shannon had an arrangement with the owner of a residential care home that he could live in free accommodation on the premises and receive a small weekly payment, on condition that he act as an “on call night assistant” at the care home. He was required to remain on the premises and provide assistance, if required, to the night care worker on duty. In practice, however, he was very rarely required to provide any assistance.

Both claimed that they were working throughout the duration of their sleep-in shift and therefore entitled to the NMW. Both claims reached the Court of Appeal where they were heard together and both dismissed. Ms Tomlinson-Blake and Mr Shannon appealed to the Supreme Court.

Supreme Court decision

The Supreme Court unanimously dismissed the appeals, finding that both workers were only entitled to the NMW for the periods when they were actually awake for the purposes of working.

The Supreme Court noted that the NMW legislation distinguishes between the concept of “working” and that of “being available for work”. The legislation was enacted following a report by the Low Pay Commission, which recommended that sleep-in workers should receive an allowance, agreed with their employer, and not the NMW, unless they were awake for the purposes of working. This became the sleep-in exception in Reg 32 of the National Minimum Wage Regulations 1999.

On a sleep-in shift, it is therefore necessary to determine what the worker is required to do. If, as here, the worker’s only obligation is to respond to emergency calls, the worker’s time in those hours is not included in the NMW calculation unless the worker actually answers an emergency call. This is the case whether the worker is awake or asleep as in both cases they will not be “awake for the purposes of working”. There may be cases in which a sleep-in worker is carrying out duties other than responding to an emergency call, in which case they could be deemed to be awake for the purposes of work, and this will be a question of fact in every case.

It should be noted that this case concerns the concept of work for the purposes of the NMW legislation, and is not concerned with the definition of “working time” under the Working Time Regulations 1998, which covers working hours, annual leave and rest breaks, and is assessed using a different test.

What to take away

The long-awaited ruling of the Supreme Court will be welcomed by the health and social care sector and will provide much-needed certainty on this key issue. We are aware that a number of employers in the care sector do pay the NMW, or top-up allowances, for the duration of sleep-in shifts. While the Supreme Court has now confirmed that payment of the NMW is not a requirement, employers who wish to change that position will of course need to be mindful of their employees’ rights under their contracts of employment.

This case has received a great deal of publicity, and the judgment has been heavily criticised in some quarters. In the light of the Covid-19 pandemic, and the focus on the valuable work done by those in the health and care sectors, it is possible that pressure will be exerted on the government and/or on care providers to review pay arrangements for their staff. Indeed Mencap, one of the employers in the case, has already responded by highlighting the chronic underfunding of the care sector, and noting that:

“We believe that the legislation covering sleep-in payments is out of date and unfair and we call on Government to reform it. More widely, they should do a thorough and meaningful review of the social care workforce and put more money into the system so that we can pay our hardworking colleagues better. It is disappointing that there is still no plan for social care reform… Until there is a more sustainable solution from Government, we plan to continue to pay top ups for sleep-ins, as we have done since 2017, and will urge Local Authorities to continue to cover this in their contracts.”

Therefore, whilst the Supreme Court decision marks the end of this long-running legal dispute, the battle over terms and conditions for care workers may be only just beginning.

How can Capsticks help

Capsticks has significant experience in advising on the issues arising out of termination of employment in the public sector, including drafting policies and procedures, advising on the approval process and drafting and negotiating termination arrangements for departing staff.

For further information on how this issue might affect your organisation, please contact Nicola Green, Alistair Kernohan or Raj Chahal.