In the judgement of Royal Mencap Society v Tomlinson Blake, the Supreme Court finally decided the issue of whether workers should be paid National Minimum Wage when on ‘sleep-in’ shifts. This long-running saga commenced in 2017 when in this and a number of conjoined cases the EAT decided that such time could, in certain circumstances, be considered to be ‘time work’ for the purposes of the NMW Regulations, such that the whole of the shift, and not just any time spent awake and working, would be payable at NMW.
The claimant, provided care and support to two men with autism and substantial learning disabilities as part of a care and support plan which the local council contracted out to Mencap to deliver. The two men live in a privately owned property and their care and support plan, directed at enabling them to lead as independent a life as possible, required 24-hour support.
The claimant’s usual work pattern involved working a dayshift at the men’s house either from 10am to 10pm or 3pm to 10pm. In addition, she was required to carry out a sleeping shift between 10pm and 7am for which she received a flat rate of £29.05.
No specific tasks were allocated to the claimant to perform during the sleep-in shift, but she was obliged to remain at the house throughout, to keep a listening ear out during the night in case her support was needed, and expected to intervene where necessary to deal with incidents that might require her intervention. The original Tribunal had found that there were only 6 instances during the 16 months preceding the hearing when her assistance had been required during such a shift. Notwithstanding, it found that all of her time during such shift constituted time work for the purposes of the regulations.
Mencap appealed, and the EAT referred to a ‘multifactorial approach’ which Tribunals would need to take in order to determine if a worker was working merely by being present at or near the place of work. The factors which the original Tribunal had taken into account included Mencap’s regulatory obligation to have someone on the premises, its obligation to have someone present at a service user’s home in order to fulfil its own contract with the council, the responsibility on the claimant throughout the sleeping shift both to be and remain present throughout, and if intervention was necessary to do so straightaway. On the basis of these facts the employment tribunal decided that the claimant was performing the role of a carer throughout the sleep-in shift, whether asleep or not, and the Employment Appeal Tribunal found no error of law and upheld the finding.
The case had massive ramifications for the care sector, which relies heavily on such working patterns and had traditionally paid workers a flat rate allowance, typically of £30-£40. It led to HMRC implementing the National Minimum Wage Social Care Compliance Scheme (SCCS), which gave employers in the sector until 31 March 2019 to calculate any arrears due to workers who had not been paid at the NMW for such shifts over the previous six years.
In July 2018, however, the Court of Appeal overturned the EAT decision and ruled that time spent during sleep-in shifts could not amount to time work unless the worker was actually awake for the purposes of working (in which case they would be entitled to NMW), regardless of factors such as there being any regulatory requirement for the worker to be present. In doing so it took account of published evidence regarding the intentions of the Low Wage Commission when it had made recommendations on the National Minimum Wage legislation, and concluded that there had never been any intention for workers to be entitled to the National Minimum Wage for periods when they could be asleep. This led to the withdrawal of the SCCS in November 2018.
The Claimant appealed this decision to the Supreme Court, who’s decision took longer than expected due to the illness and subsequent death of one of the Judges who presided. The Supreme Court agreed with the Court of Appeal’s findings, and in doing so, overturned a number of other EAT decisions which had held that there could be circumstances were time spent sleeping could be time work.
This decision finally draws a line under this issue and will be a huge source of relief to employers in the care sector.