The Court of Appeal has upheld on 13 July 2018, Royal Mencap Society’s appeal against the Employment Appeal Tribunal’s decision that ‘sleep-in’ workers should be paid the hourly national minimum wage (NMW) for the duration of sleep-in shifts.

The facts and case history

Claire Tomlinson-Blake brought a claim against her employer Royal Mencap Society (Mencap) in 2016. Tomlinson-Blake, a Mencap support worker argued that the flat rate of £22.35 plus one hour’s pay (amounting to a figure of £29.05) received for sleep-in shifts between 10pm and 7am, was insufficient given she works ‘simply by being present’. She contended that she was entitled to the hourly NMW for the duration of the sleep-in shift, amounting to around £60.00.

The Employment Tribunal accepted the claimant’s view that, although not actively performing tasks for the entirety of the night time period, she uses her ‘listening ear’ to respond if support is needed. The Tribunal ruled Tomlinson-Blake was entitled to the NMW for all time spent on sleep-in shifts. It advocated a multi-factorial evaluation in each case as to whether an employee was working or merely present during the shift, looking at factors such as the degree of responsibility, the nature of the tasks and the contractual position. An appeal by Mencap to the Employment Appeal Tribunal (EAT) in 2017 was unsuccessful.

Following the EAT decision, Mencap and other employers providing sleep-in care services argued they would be unable to fund back-payments for employees over the relevant six year period. It was estimated that this would cost the care industry £400m. In November 2017, a Social Care Compliance Scheme commenced providing employers a mechanism (and grace period) to calculate pay owed and make payments (with a final deadline of 31 March 2019).

Mencap appealed the EAT decision and this was heard at the Court of Appeal in March 2018, together with the case of John Shannon -v- Jaikishan and Prithee Rampersad (t/a Clifton House Residential Home).

Findings

The Court of Appeal overturned the earlier decisions of the Tribunal and EAT, instead deciding that sleep-in carers are to be characterised as ‘available for work’, rather than ‘actively working’ when asleep. As the minimum wage is only payable for time when the employee is required to be awake for the purposes of working (Reg 32 NMW Regulations 2015), Tomlinson-Blake was not entitled to NMW pay for the entire shift, only for any periods when she was awoken and called upon to work.

We understand that Tomlinson-Blake’s UNISON legal team is considering an appeal to the Supreme Court, but leave for this has not yet been requested.

Implications

Sleep-in care workers may be paid a flat fee for sleep-in shifts, and will no longer be entitled to the previously anticipated back payments of NMW over the preceding six year period. The decision has no doubt come as a relief to Mencap and all providers of sleep-in care services who were originally provided with a deadline of March 2019 for paying back monies owed to workers.

However, as the decision may be subject to further appeal, the matter is not necessarily closed and we understand that affected employers are taking a prudent approach by continuing to calculate/assess potential liabilities. Also members of the Social Care Compliance Scheme are likely to be seeking clarification of their position.