Sleep in shifts not subject to National Minimum Wage

The Supreme Court judgement has ruled that sleep in shifts are not subject the payment of National Minimum Wage.

The issue under judgement

Whether home workers who are required to remain at home in their shift and/or residential care workers who ‘sleep in’ are entitled to the national minimum wage for time that is not spent actually performing some specific activity.

Case 1 – Mencap Appeal

In the first appeal (“Mencap Appeal”), Royal Mencap Society (“Mencap”) provides care and support for vulnerable adults under a contract with a local authority. Mrs Tomlinson-Blake is a highly qualified and extensively trained care support worker employed by Mencap since 2004. She provides care and support to two men, each in a private property. They both have autism and substantial learning difficulties.

Mrs Tomlinson-Blake’s usual work pattern involved a day shift and a morning shift, for which she received appropriate salaried remuneration. She was also required to carry out a sleep-in shift from 10pm to 7am at a flat rate of £22.35, plus one hour’s pay of £6.70 (£29.05 in total). No specific tasks were allocated in the sleep-in shift. However, she needed to keep a ‘listening ear’ out during the night in case her support was needed and expected to intervene where required or respond to requests for help. That need to intervene was found to be real and infrequent – six times over the preceding 16 months. Absent such interventions, she was entitled to sleep throughout. Where her sleep was disturbed and she needed to provide night-time support, the first hour was not additionally remunerated, while any further hours were paid for in full. 

Her claim in the Employment Tribunal (“ET”) was that she was entitled to have all the hours spent sleeping in counted as working time for minimum wage purposes. The ET and (on appeal by Mencap) the Employment Appeal Tribunal (“EAT”) upheld her claim. The Court of Appeal allowed Mencap’s further appeal on 13 July 2018, deciding that she was not entitled to national minimum wage payments for such shifts.

Case 2 – Shannon Appeal

In the second appeal (“Shannon Appeal”), Clifton House is a registered residential care home in Surrey. It provides care for up to 16 elderly residents. Before Mr and Mrs Rampershad took over the care home in 2013, it was owned by a Mr Sparshott. In 1993, he offered Mr Shannon employment as an “on-call night care assistant” with accommodation in the studio within the care home (“the Studio”). He was required to be in the Studio from 10pm to 7am. He was able to sleep during those hours, but had to respond to any request for assistance by the night care worker on duty at the home. 

In return, he received free accommodation and £50 per week (later £90 per week). The original arrangement was for him to take some time away on holiday. However, from 1996 onwards, he slept there every night. In practice, he was very rarely asked to assist the night care worker. He had day jobs as a driver from time to time.

His claim in the ET was that he was entitled to have all hours between 10pm and 7am counted as salaried hours work for minimum wage purposes for 365 days per year. The arrears due to him on that basis were calculated to amount to almost £240,000. The ET dismissed his claim for such minimum wage arrears. The EAT affirmed the ET’s decision. The Court of Appeal dismissed his further appeal on 13 July 2018.

The judgement

The Supreme Court unanimously dismisses the appeals. Lady Arden gives the first judgment. Lord Carnwath, with whom Lord Wilson agrees, and Lord Kitchin give concurring judgments

Edel Harris, Chief Executive of the Royal Mencap Society, said:

“Support workers within Mencap and across the sector do an exceptional job. They are dedicated in their care for people with a learning disability and should be paid more. They are care workers on the coronavirus front line and deserve better recognition in all forms. The Supreme Court in its judgment rightly recognises this. But we understand that many hard-working care workers will be disappointed by its ruling. 

“Mencap contested this case because of the devastating unfunded back pay liabilities facing providers across the sector. This was estimated at £400 million. Sleep-ins are a statutory care service which should be funded by Local Authorities, and ultimately Government. It is no exaggeration to say that if the ruling had been different, it would have severely impacted on a sector which is already underfunded and stretched to breaking point. Some providers would have gone bust and, ultimately, the people who rely on care would have suffered. 

“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. 

“Today’s decision means that we can continue our important work which includes fighting for the rights of people with a learning disability, giving information and advice and promoting inclusion, as well as supporting people to live brilliant lives. 

“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.”

PAYadvice.UK 19/3/2021