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Care workers NOT entitled to the minimum wage while they are sleeping/expected to sleep

The Court of Appeal has handed down its decision in the appeals of Royal Mencap Society v Tomlinson-Blake (Mencap), and Shannon v Ramperswad.  It held that workers who are contractually obliged to spend the night at or near their workplace, but whom are expected to sleep for all or most of the period, although may be woken if required to undertake some specific activity, are not entitled to be paid the national minimum wage.

What does this mean?

Essentially, it means that care workers who are to sleep-in overnight at premises where elderly, disabled or otherwise vulnerable people live, on the basis that they can be called on to help if required but otherwise have no duties (i.e. are available for work, as opposed to actually working) will not be entitled to be paid the national minimum wage during those hours.

The facts of the main case of Mencap

East Riding of Yorkshire Council had responsibility for providing support and care for vulnerable adults including those with learning difficulties.  It contracted with the Royal Mencap Society to provide some of that support and care.  The claimant, Ms Tomlinson-Blake, was a highly qualified and extensively trained care support worker employed by Mencap since 2004.  She performed her role at two privately-owned properties, providing care and support to two men, both of whom had autism and substantial learning disabilities making them vulnerable adults within the council's responsibility.  Their care and support plan, directed at enabling them to lead as independent a life as possible, required 24-hour support. 

Ms Tomlinson-Blake's usual work pattern involved working a day shift at one of the men's houses either from 10 a.m. to 10 p.m. or 3 p.m. to 10 p.m.  She would then work the following morning shift, either from 7 am to 10 am or from 7 a.m. to 4 p.m.  Those hours were part of her salaried hours and she received appropriate remuneration in relation to them.  In addition, Ms Tomlinson-Blake was required to carry out a sleep-in shift between 10 p.m. and 7 a.m. for which she received a flat rate of £22.35 together with one hour's pay of £6.70, making a total payment for that nine-hour sleep-in of £29.05.

No specific tasks were allocated to Ms Tomlinson-Blake to perform during that shift, but she was obliged to remain at the house throughout the shift and to keep a listening ear out during the night in case her support was needed.  She was expected to intervene where necessary to deal with incidents that might require her intervention (for example if one of the men was unwell or distressed) or to respond to requests for help; the ET emphasised that deciding whether to intervene required an exercise of her professional judgment, based on her knowledge of the residents.  She was expected to respond to and deal with emergencies that might arise.

The tribunal found that there were only six occasions over the preceding 16 months when Ms Tomlinson-Blake had to get up to intervene during the sleep-in hours.  If nothing needed to be done during her sleep-in shift, Ms Tomlinson-Blake was entitled to sleep throughout.  She was provided with her own bedroom in the house where she slept, together with shared bathing and washing facilities.  The evidence was that it was positively expected that she should get a good night’s sleep, since, depending on the shift pattern, she might have to work the following day.  

If her sleep was disturbed and she needed to provide direct support during the night, the first hour was not additionally remunerated.  If Ms Tomlinson-Blake was required to provide care for longer than an hour, she was entitled to additional payments.

Ms Tomlinson-Blake’s claim was that she was entitled to have the totality of her hours spent sleeping in counted as ‘time work’ for NMW purposes.  The ET and the EAT, upheld that claim on the basis that she was actually working for the whole period so that the sleep-in exception did not apply. 

The Law

The National Minimum Wage Regulations 1999 (1999 Regs) are the first regulations made under the National Minimum Wage Act 1998.  They have been amended since, and the latest regulations in force are the National Minimum Wage Regulations 2015 (2015 Regs) (with effect from 6th April 2015).

Regulation 15(1) of the 1999 Regs states:-

In addition to time when a worker is working, time work includes time when a worker is available at or near a place of work, other than his home, for the purpose of doing time work and is required to be available for such work except that, in relation to a worker who by arrangement sleeps at or near a place of work, time during the hours he is permitted to sleep shall only be treated as being time work when the worker is awake for the purpose of working.

Regulation 32 of the 2015 Regs states:-

(1)  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.

(2)  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.

Court of Appeal Judgment

Lord Justice Underhill said in his Court of Appeal judgment: “I believe that sleepers-in…are to be characterised for the purpose of the NMW Regulations as available for work, within the meaning of regulation 15(1) [of the 1999 Regs] or 32 [of the 2015 Regs], rather than actually working, within the meaning of regulation 3 or 30, and so fall within the terms of the sleep-in exception in regulations 15(1) or 32(2).  It follows from my conclusions above that [the ET and the EAT’s decision] was wrong.  Ms Tomlinson-Blake slept by arrangement at her place of work and was provided with suitable facilities for doing so…It follows that she is to be treated as being available for work during those hours and not actually working and that the sleep-in exception applies.  The result is that only those hours during which she was required to be awake for the purpose of working count for NMW purposes”.

LJ Underhill continued to say: “I note that the ET emphasised that Ms Tomlinson-Blake was obliged “to keep a ‘listening ear’” even while asleep and emphasised the need for her to exercise a professional judgment as to whether intervention was required.  But I do not see how either point affects the analysis.  Any sleeping-in worker has to have a “listening ear”, in the sense that they have to be prepared to be roused by the occurrence of something untoward: that is what they are there for.  The phrase is in any event metaphorical: the fact is that she was expected to, and almost always did, get an uninterrupted night’s sleep.  And it cannot make any difference what kind of decisions had to be made if and when she was roused”.

If this decision affects you and you would like to have a chat with us about this, or any other area of employment law, please do give Kim Knox, Associate Solicitor, a call on 01392 477983.

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