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Supreme Court rules care companies do not have to pay sleep-shifts

The Supreme Court have delivered their judgment this morning in the case of Royal Mencap Society v Tomlinson-Blake UKSC 2018/0160, one of the most eagerly awaited judgments in the care sector. In their decision, the Court ruled that care workers who are required to stay overnight are not entitled to the national minimum wage for time not spent performing a specific activity.

In 2016, Clare Tomlinson-Blake brought a claim to the Employment Tribunal against her employer, the Royal Mencap Society. Mrs Tomlinson-Blake worked as a care worker and was on occasion required to work a “sleep-in shift” as part of a 24-hour support provision. On such shifts, Mrs Tomlinson-Blake was provided with her own room and was allowed sleep, however she was required to provide support and respond to emergencies where necessary, and was only paid a flat rate of £29.05 for the entire nine hours. Mrs Tomlinson-Blake argued that as she was required to be available to provide care if awoken, she should receive the National Minimum Wage for every-hour of the sleep-in shift.

The Employment Tribunal, and subsequently the Employment Appeal Tribunal, upheld Mrs Tomlinson-Blake’s claim and ruled that she was entitled to receive the National Minimum Wage for her entire shift. The Royal Mencap Society appealed this decision to the Court of Appeal in 2018, who held that care workers on the sleep in shift were only entitled to the minimum wage for those hours when they were awake for the purposes of working.

Mrs Tomlinson-Blake was granted permission to appeal to the Supreme Court, who heard her case in February 2020. The appeal was heard alongside that of a Mr John Shannon, who similarly was paid a fixed rate for overnight sleep-in care provided at Clifton House Residential Home.

As announced today, the Supreme Court has unanimously dismissed both Mrs Tomlinson-Blake and Mr Shannon’s appeals. In her decision, Lady Arden noted that she was required to interpret Rule 32(2) of the National Minimum Wage Regulations 2015, which states that a worker would only be deemed to be available for work when they are “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”. In interpreting this provision, Lady Arden found that “however many times the sleep-in worker is (contrary to expectation) woken to answer emergency calls, the whole of his shift is not included for NMW purposes. Only the period for which he is actually awake for the purposes of working is included”. On that basis, care workers on sleep in shifts will only be entitled to the National Minimum Wage for the hours in which they are required to be awake and working, and not the entire shift as sought by the Claimants.

It should be noted that Lady Arden stressed that the Court’s decision was made on the basis of arguments provided before the first Coronavirus lockdown, and that they had not considered the stay-home measures for care-workers necessitated by the pandemic or their applicability to the National Minimum Wage. This may leave the door open for possible future claims brought in such circumstances.

Many local authorities and care companies will be breathing a sigh of relief, with potential back pay liabilities estimated to be over £400 million. However, individual workers, at the front line during Covid, will feel let down by the Supreme Court judgment, and some companies may top up pay as a gesture of goodwill during this period.

If you would like to speak to a solicitor regarding an employment law claim, please get in touch with a member of our Employment team.